The plaintiff claimed for damage to cargo carried from Brazil to Costa Rica. The bill of lading provided the Hague Rules as the applicable law. The defendant, Hamburg Süd, alleged two defences: 1) the lack of legitimacy to be sued; and 2) that the action was time-barred.

Hamburg Süd based its first defence on the fact that the bill of lading was issued by Allianca Navegacao e Logistica Ltds & Cia (Allianca), whose name appeared on the head of the document, appointing this company as the contractual carrier and the only party responsible for any damage. Against this argument, the plaintiff alleged that cl 17 of the bill of lading stated that the liability of Allianca ‘shall be the same as that of the participating carrier’, while cl 1 defined the participating carrier as ‘any other carrier by water, land or air performing any stage of the carriage, whether acting as a sub-carrier, connecting carrier, substitute carrier or Bailee’. The bill of lading was signed by Agencias Unidas SRL, which, it was said, was the defendant’s agent. Hence, the plaintiff concluded that Hamburg Sud was the actual carrier or participating carrier subject to the same liability of the contractual carrier. The First Maritime Court agreed with the defendant’s theory, declared this defence valid and dismissed the case. Plaintiff appealed this decision.

As a second defence, defendant alleged that the action was time-barred as the lawsuit was filed after the one-year bar limitation established in art 3.6 of the Hague Rules. The carrier discharged the cargo at the destination port on 17 November 2008 and delivered to the consignee on 20 November. The lawsuit was filed on 20 November and the arrest of defendant’s property (bunkers) took place on 23 November. The service of process was effected with the arrest. The lower court held that the one-year time bar limitation started running three working days after the delivery of the goods to the consignee. This is the three-day period to report damage to a cargo that is not apparent, according to art 3.6 of the Hague Rules. That meant that the time limitation bar started running the day after 25 November 2008. In consequence, the service of process effected on 23 November 2009 was within the one-year period. The defendant appealed this decision.

Held. On the first defence, the Civil Branch of the Supreme Court, acting as Court of Maritime Appeals, affirmed the decision, stating that according to the definition of carrier, under the Hague Rules, it ‘includes the owner or the charterer who enters into a contract of carriage with a shipper’. Hamburg Süd had not signed the contract, was not the owner of the two vessels involved, nor appeared as agent, sub-carrier, connecting carrier, substitute carrier or bailee of the damaged cargo. Therefore, it could not be considered a participating carrier and there was no right to sue Hamburg Sud for this claim.

Regarding the second defence, the Supreme Court reversed the lower court decision and stated that, as the bill of lading showed it was a carriage under a port to port modality, carrier’s responsibilities ended when it discharged the cargo at the port on 17 November 2008. Hence, a lawsuit served on 24 November 2009 fell outside of the period of one year. It clarified that the lower court seems to have confused the three days’ period to report not apparent damages with the one-year time bar limitation. The latter runs from the moment the cargo is delivered or when it should have been delivered.