The appellant, FM SA, purchased fabrics in China to use in its Autumn/Winter 2017-2018 Collection (in store in June-July 2017). The appellant entered into a contract with the respondent freight forwarder A Ltd for the transportation of the goods in containers from Shanghai, China, to Leixões, Portugal. A Ltd subcontracted the actual carriage to AX Ltd. MP Ltd provided transport insurance in the amount of EUR 46,829.48. The goods were supposed to be delivered in April 2017, but delivery was delayed by over two months.

The appellant brought several claims for damages against A Ltd, AX Ltd, and MP Ltd in the Civil Court of Porto which, by a decision of 20 February 2022, found itself incompetent to hear the claims. The records were then sent to the Maritime Court of Lisbon. The Maritime Court held that the appellant's claims against the respondents were extinguished by the time bar in the Hague Rules. The appellant appealed to the Lisbon Court of Appeal.

Held: Appeal dismissed. Judgment of the Maritime Court confirmed.

The foundation of the legal institution of extinction of claims (caducidade or preclusão) is the need for legal certainty, ie, the requirement that certain rights be exercised within a certain period so that the legal situation remains defined and unalterable. Extinction is, therefore, established with the aim of becoming certain, consolidating, clarifying, a certain legal situation within a certain period. In other words, when the law sets a deadline for the exercise of a certain right, it does not want to make this right dependent on the observance of the deadline, but simply extinguish it if the deadline is not observed.

The relevant moment to prevent the forfeiture of the right, when it has to be exercised through a legal action to be proposed within a certain period, is the moment of filing the action (arts 267 of the CPCr, 259 of the CPC and 332.1 of the CC).

The expiry period, if the law does not set another date, begins to run from the moment the right can legally be exercised: see art 3.6 of the Hague Rules, as well as art 27.2 of DL nº 352/86. These provide, respectively, for one year counted from the date of delivery of the goods, or two years from the date on which the injured party became aware of its rights.

Here, between the date on which the goods were delivered to the appellant and the date on which the action was filed, more than two years had elapsed. The appellant claims to have received the goods on 19 June 2017 and the action was filed in court on 5 July 2019. Thus, whether the Court applies the one-year expiry period referred to in art 3.6 of the Hague Rules (which applies to the present case), or the two-year expiry period referred to in art 27.2 of DL nº 352/86, the appellant's right of action has expired.

The respondents in their pleadings do not speak of extinction of the claim, but rather of prescription. However, as is evident, the Court is not bound by the legal understandings advanced by the parties, and there was no doubt that the respondents were invoking the peremptory exception extinguishing the right that the appellant intended to enforce.