The plaintiff entered into an international freight transport contract with the defendant, under which the latter undertook to carry out round-trip cargo transport between Portugal and Dubai. The plaintiff made it plain at the conclusion of the contract that it was essential that the goods would have to arrive in Dubai in time to be marketed and demonstrated at the Dubai International Fair. This did not happen, however, since the goods did not arrive at their destination in a timely manner, either before the Fair was held or even while it was taking place, which caused damages to the plaintiff. The plaintiff claimed EUR 15,033.32 as compensation for property damage (consequential damage); EUR 500,000 as compensation for property damage (loss of profit); and EUR 50,000 as compensation for non-pecuniary damage plus interest.

The Court of first instance partially upheld the claim and ordered the defendant to pay to the plaintiff the amount of EUR 997.60 plus interest. The plaintiff appealed.

Held: Appeal dismissed.

The maritime phase of the transport contracted by the plaintiff is governed by the Hague Rules, art 4.5 of which applies to losses or damage caused to or affecting goods, and therefore also includes damage resulting from delay in delivering the goods. Under the terms of arts 4.5 and 9 of the Hague Rules, and art 1 of DL no 37,748, dated 1.2.1950, and art 31 of DL no 352/86, of 21.10, the compensation due by the shipping company for loss and damage or for the delay in delivery of the transported goods does not exceed PTE 100,000 or EUR 498.80 per package or unit.

The plaintiff does not appear to question the application of the Hague Rules to the contract under discussion, nor its application to the delay in delivering the goods. The plaintiff maintains that the limitation of liability does not benefit the carrier who acted with intent to cause damage.

The presumption of fault of the carrier resulting from the Hague Rules is a presumption of mere fault (fault in the strict sense of negligence), and not of intent, and, in this regard, the burden of proof lies with the person alleging intent. The carrier was unable to rebut the presumption of fault, that is, it did not prove that the delay in delivery had not resulted from the omission of its duties of care, prudence and diligence. In the absence of rebutting this presumption, the carrier is liable for defective fulfilment of the transport contract, reflected in the delay in delivery, pursuant to art 4.5 of the Hague Rules, that is, up to the limit of EUR 498.80 per package or unit. There was no proof that the delay in delivery resulted from an intentional act by the carrier. The burden of proof of intent belonged to the plaintiff, as a means of removing the rules for calculating the indemnities contained in art 4.5 of the Hague Rules.

In maritime law, contrary to the rule of civil liability based on the Civil Code, the liability of the carrier for non-compliance with the contract is always limited to an amount pre-defined in the law. The Hague Rules, in addition to defining its own causes for exemption from liability, sets an indemnity limit, contrary to the general rule of full compensation for damage. Only if the parties differently state that limit is it exceeded.

The 1968 Protocol (the Hague-Visby Rules) provide for the removal of this limit of liability when the damage to the goods results from an act or omission of the carrier that represents an intention to cause it, as well as when the carrier recklessly acts with the awareness that damage would likely result from that act or omission. However, Portugal did not adhere to this Protocol, which does not, therefore, apply to the situation at hand. Even so, although there is no provision in the Hague Rules and in DL 352/86, the carrier may be liable beyond that limit if it has intentionally caused damage. The carrier's irresponsibility cannot be excused if it acted intentionally, violating good faith in contractual compliance. In cases of wilful misconduct, the compensation limit of Article 4.5 of the Hague Rules is removed.