Abreu - Carga e Trânsitos Lda (A) claimed EUR 2,258.28 from AA on the basis of the latter's failure to pay for A's carriage of 53 boxes of LED strips and car films from Guangzhou, PRC, to AA's store in Laranjeiro, Portugal. AA filed an objection, alleging that the carrier's right to claim was time-barred. AA also invoked the exception of non-performance of the transport contract, alleging that almost all of the goods arrived at their destination damaged. In parallel, AA filed a counterclaim, against A for EUR 20,000, corresponding to the profit that AA would have obtained from the sale of the damaged goods.

The Court below considered AA's counterclaim untimely. The deadline set by the Hague Rules had already expired when AA filed its counterclaim, judicially exercising the right to compensation. Since the claim for compensation was deemed untimely, the analysis of any evidence of compensable damages and, if affirmative, their respective amount, was unnecessary. The Court below ordered AA to pay A the freight owing under the transport contract. AA appealed.

Held: Appeal dismissed, apart from one factual finding.

The factual challenge did not allow the Court to conclude, as the appellant argues, that the damage to the goods occurred during land transport in Portugal, from A's warehouse to AA's store (ie domestic transport to which the regime established by the Hague Rules does not apply, including the limitation period provided therein for filing a claim for compensation based on defective performance by the carrier).

It is therefore necessary to apply the legal framework relating to transport contracts (see the Judgments of the Supreme Court of Justice of 6 May 2003, Case No 03B4302, or of 18 December 2008, Case No 08B3832).

The Brussels Convention, published in the Government Gazette of 2 June 1932 (Accession Charter of 5 December 1931), and whose arts 1-8 were introduced into domestic law by Decree-Law No 37748 of 1 February 1950, prevails over Decree-Law No 352/86, as is expressly stated in its art 2: 'This contract is governed by the international treaties and conventions in force in Portugal and, subsidiarily, by the provisions of this decree.'

In this regard, we refer to the Judgment of the Supreme Court of Justice of 18 September 2007, Case No 07A2649 (CMI602):

It is beyond question that, Portugal having acceded in 1932 to the Brussels Convention of August 25, 1924, concerning the carriage of goods by sea under a bill of lading, and since with the entry into force of Decree-Law No. 37,748 of February 1, 1950, the provisions of Articles 1 to 8 became applicable to all bills of lading issued in Portuguese territory, regardless of the nationality of the contracting parties, the legal relationship configured in the dispute must be governed first by the rules contained in said Convention, and only then, subsidiarily, by national law ... . Thus, between the limitation period for bringing an action for damages of one year 'from the date of delivery of the goods or the date on which they should have been delivered', established in [art 3.6 of the Hague Rules] and the 'two-year period, counting from the date on which the injured party became aware of the right to which he is entitled', provided for in paragraph 2 of Article 27 of Decree-Law No. 352/86, of October 21, which regulates the contract for the transport of goods by sea, or even the periods provided for in the Civil Code, the normative provision of the Convention must be considered.

The goods in question were delivered to AA on 12 November 2019. AA filed a counterclaim on 2 December 2021, when the one-year limitation period stipulated in art 3.6 of the Hague Rules had already expired (see art 331.1 of the Civil Code). This is because there is no concrete evidence in the case file that would allow the Court to conclude that there was any cause for suspension or interruption of that limitation period.

AA's alternative arguments based on the exception of non-performance of the contract, set-off, and unjust enrichment were also dismissed.