This case involved a cargo claim for loss of a container overboard between Leixões and Sydney. The court of first instance held that the plaintiff's claim had expired as it was brought after the one-year period stipulated in art 3.6 of the Hague Rules. The plaintiff appealed to the Lisbon Court of Appeal.

Held: Appeal dismissed; contested decision upheld.

In accordance with international law, '[i]n any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered': art 3.6 of the Hague Rules, to which Portugal acceded by letter of 5 December 1931 and made internal law by DL 37748 of 1 February 1950. Admittedly, art 27(2) of DL 352/86 of 21 October extends the time limit for bringing this action to two years. However, it must be taken into account that the bill of lading was issued in Portugal,and therefore the provisions of arts 1.b, 2 and 10 of the Convention apply. Therefore, that Convention provision is the only one applicable to this situation, constituting a case of forfeiture of the right of action, under the terms of art 298(2) of the Civil Code, in relation to the loss of the transported goods.

The forfeiture at issue here concerns the relationship between the carrier and the injured party. The period of expiry shall be calculated on the basis of the time elapsing between the date of delivery of the merchant's goods to its destination or the date on which such delivery should have taken place and the date on which the action was brought. These two temporal marks, well defined in the aforementioned art 3.6 of the Convention, exclude the application of art 329 of the Civil Code to the counting of the aforementioned period, in the specific situation of these cases. Moreover, the latter article itself reserves its application only in the event that 'the law does not fix another date' for the purposes of calculating the period, and in this case, as has been seen, international law sets that date.

The goods in question should have been delivered to the port of Sydney on 7 July 1996, which is admitted because it was not challenged by the plaintiff. It is therefore necessarily concluded that the claim was brought before the court more than one year after the date on which the lost goods should have been delivered.

[For the unsuccessful cassation appeal to the Supreme Court of Justice, see CMI558.]