The respondent was engaged in the production, processing and marketing of milk products. The appellant was engaged in the activity of freight forwarding by air, land and sea. A container containing cheeses was delivered by the shipper headquartered in Pico Island, Azores, to be transported by sea from that island to the port of Lisbon, and from there to the appellant's headquarters and facilities, located in Oliveira de Azeméis, by land. On delivery it was found that the cheeses had deteriorated and were no longer fit for human consumption.

The appellant invoked the liability limit set out in art 4.5 of the Hague Rules and arts 31 and 24 of Decree Law No 352/86, with the wording of art 25 of Decree Law No 323/2001, of 17/12; and claimed that the maritime shipment was made by the third party intervener. The lower court held in favour of the respondent in the amount of EUR 19,925.10. The appellant and intervener appealed to the Porto Court of Appeal.

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

The lower court was correct in finding the facts in question. Since there is no basis for amending the findings of fact, there is also no reason to alter the decision of law. In the light of the established facts, the decision in law was appropriate and deserves no criticism. The fact that the carrier is a different person from the appellant in no way alters the legal position of the carrier, since it remains the obligation of the carrier to transport the goods from one port to another and from the latter to the respondent's premises. On arrival, the products were at a temperature of 9.8º C, with signs of deformation, mouldy, rimated and with no characteristic odour. For these reasons, they would be unfit for consumption. The products were shipped in good condition and should have been transported at a temperature of 5º C.

This is a maritime transport contract, the legal provisions of which are laid down in the Hague Rules introduced into the Portuguese legal system inter alia by Decree Laws No 37/748 of 1.2.1950 and 352/86 of 21.10. The carrier or shipowner, as referred to in art 1 of the Hague Rules, is obliged to move the goods from one port to another by delivering the goods unscathed. The carrier is in principle liable if, at the time of unloading, faults or defects in the goods attributable to it are found. In assessing liability for damage caused to goods transported by sea, account should be taken of the Hague Rules, DL 352/86, the Commercial Code and the Civil Code. The combined effect of these provisions is as referred to in the STJ Judgment of 31.5.2001: 'it follows that both the master of the ship and its owner are liable for damage caused to the goods carried if such damage is due to their fault. However, the fault of the shipowner shall be presumed and he shall be relieved of such liability only if he proves that the damage was due to any of the circumstances indicated in Article 4 of the Brussels Convention.' CJ, Year IX, Vol II, 115. That is, the Hague Rules provide for a presumption of liability on the part of the carrier, except for the cases of exemption provided for in the various heads of art 4.2. Clauses having the effect of reducing the carrier's liability or reversing the burden of proof are considered null and void. In this regard, see Alfredo Proença and J Spain Proença, Transportation of Goods 246.

The respondent's total loss is EUR 19,925.10. The appellant argues that an application of the indemnity limit contained in art 4.5 of the Hague Rules and arts 31 and 24 of Decree Law No 352/86, read together with the wording of art 25 of Decree Law No 323/2001 of 17 December, since the goods were packed in a container, which, being a single volume or unit of cargo, limits the appellant's liability to EUR 498.80. Indeed, by combining art 31(1) and (2) and art 24 of Decree Law No 352/86, of 21/10, with the mentioned update to Euros, it follows that if the bill of lading does not contain an enumeration referred to in art 24, art 31(1) provides that each container, pallet or other similar element shall be considered for the purposes of legal limitation of liability as a single package or unit of cargo.

The bill of lading in this case enumerates '711 boxes' ('711 caixas') and states 'type of packaging and packing of goods: boxes, container consolidated by the shipper' ('tipo de embalagem e acondicionamento da mercadoria: caixas, contentor consolidado pelo carregador'). Hence the bill of lading complies with the above enumeration requirement in art 24 and the indemnity container limit referred to in art 31(1) is removed. Accordingly, as the lower court has correctly held, the appellant must compensate the respondent for the amount of EUR 19,925.10.