This case involved a claim for damage to two containerised shipments of fresh chilled beef shipped from the Azores to Portugal. The damage arose from a temperature rise in the containers during the voyage. The plaintiff insurer compensated the cargo owner for the total loss amounting to EUR 60,694.89 and sought compensation from the defendant carrier.

The defendant argued that it had made every effort to verify the condition of the refrigerated containers, ensuring that they were repaired whenever possible. However, refrigerated containers were sensitive machines which might break down at any time. In any event, even if the defendant were liable, its liability should not exceed the limit set in art 31 of Decree Law 352/86 of EUR 498.80 for each package or unit listed in the bill of lading. The loading unit listed in each of the two relevant bills of lading in this case was '1 batch fresh beef refrig'. The defendant contended, therefore, that if there was any liability on its part, it should be limited to the amount of EUR 997.60 (EUR 498.80 x 2).

The Lisbon Maritime Court held in favour of the plaintiff and ordered the defendant to compensate the plaintiff in the full amount of EUR 60,694.89. The defendant appealed.

Held: Appeal dismissed; judgment of the lower court upheld.

The burden of proof is on the carrier to demonstrate that it has done everything to ensure that the accident does not occur. This expressly follows from the provisions of art 4.1 and 4.2 read with arts 3.2 and 1.c of the Hague Rules (incorporated in Portuguese law by Decree Law 37/748 of 1 February 1950). The defendant did not satisfy the burden of proof placed on it and, as such, the negative results resulting from such omission must always be attributed to it, as was the understanding of the primary Judge.

As regards package limitation, the idea of ​​reducing each of the containers on board to one package and/or one unit in cases of damage to goods, is based only on the impossibility of ascertaining the kind of things transported in them. This is not the case in situations where, as in the present case, the goods transported are clearly enumerated, whether in relation to number or weight.

Article 4.5 of the Hague Rules provides that '[n]either the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connexion with goods in an amount exceeding 100 pounds sterling per package or unit, or the equivalent of that sum in other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.' In the present case, the carrier has always been aware of the cargo that it was carrying in each of the contracts entered into, either in respect of the bill of lading dated 1 August 2007 or in relation to that dated 28 August 2007, as well as their weight and other conditions under which the agreed transport should take place.

It is not disputed that the 1968 Visby Protocol, which introduced a kilogram-based limitation criterion, cannot be applied since Portugal has not ratified that Protocol. With regard to art 9 of the Brussels Convention, the provisions of Decree Law 37/748 of 1 February 1950, and Decree Law No 352/86 of 21 October limit the liability of the carrier to PTE 100,000 (EUR 498.80). However, the limitation of liability based on the provisions of art 4.5 of the Convention cited above is only applicable in the event of an omission in respect of enumerating the products carried, which is not the case here, where all loaded products have been correctly identified in the two bills of lading accompanying each contract. Thus, all products loaded on the ship have the correct enumeration of the cargo, both in terms of number and weight, which, in accordance with the provisions of art 24(1) of Decree Law No 352/86, allows the units listed in the respective bills of lading to be understood as consolidated in each container, ie 13,500 kgs in one case and 12,500 kgs in the other. The compensation for damage to the goods transported must therefore be calculated on this basis, as the lower court held.