This case involved damage to a cargo of cheese carried from Ponta Delgada, Azores, to Lisbon, Portugal. The cargo note incorrectly designated the goods as butter. This information was later corrected but not properly communicated. The cheese ought to have been carried at a temperature of +4°C, but the carrier, in the belief that the goods to be transported were butter, proceeded to adjust the temperature to -20° C. On arrival in Lisbon the cheese was found to have crystallised. The plaintiff cargo owner's claim against the carrier failed in the court of first instance, which held that it was extinguished as it had not been brought within the one-year period specified in art 3.6 of the Hague Rules.

The plaintiff appealed to the Lisbon Court of Appeal.

Held: Appeal dismissed. Judgment under appeal upheld.​

The fact that a freight forwarder was involved in the carriage arrangement does not necessarily mean, as the plaintiff claims, that the case falls outside the scope of the Brussels Convention of 1924 (the Hague Rules), given effect by Law 27748 of 1/2/1950. Article 1 of the latter Law expressly states that the provisions of arts 1-8 of the aforementioned Convention are applicable to all bills of lading issued in Portuguese territory, whatever the nationality of the contracting parties. This is certainly the case here. DL 352/86, art 1, defines the contract of carriage of goods by sea to be one in which one of the parties is obliged in relation to the other to transport certain goods to a different port, for a pecuniary charge called freight; and art 2 states that 'this contract is governed by international treaties and conventions in force in Portugal and, in the alternative, by the provisions of this law'.

In this case there is a contract of carriage of goods by sea, with a bill of lading issued in Portugal. The goods transported were damaged during transportation and the plaintiff intends to be compensated. It has not been demonstrated that the containers were stowed on deck (a circumstance which would render the Convention ipso iure inapplicable).This case is therefore governed by the Brussels Convention.

Article 2 of the Hague Rules provides: 'Subject to the provisions of Article 6, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth.' And art 3.6 provides: 'In 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.' In turn, art 27(2) of DL 352/86 states: 'The rights of indemnity provided for in this law shall be exercised within two years from the date on which the injured party became aware of his/her right.'

Accordingly, the defendant's liability to the plaintiff is not subject to the ordinary limitation period of 20 years of art 309 of the CCiv, which does not apply to it. This has been ​recognised in a number of Supreme Court decisions.

The deadline for this period is the delivery of the goods, from which the period of one or two years begins to run in accordance with art 329 of the CCiv. The cargo having been made available to the recipient on 28 November 2001, the deadline began then. As the plaintiff's action was brought on 5 January 2005, it was more than 3 years after the expiry of the deadline. Thus, the plaintiff's right against the carrier had expired.