Contilatin del Perú SA claimed the loss of part of a cargo of soy flour and corn carried on the MV Destino Dos from Rosario (Argentina) to Puerto Salaverry (Peru). The lawsuit was filed against Destino Dos Navigation Ltd and Allied Maritime Inc, the shipowner and carrier respectively, both represented in Peru by Agencia Marítima de Barcos SA (the defendants).

The defendants alleged that the lawsuit was not admissible because the missing cargo did not amount to more than 1 per cent of the shipment, according to art 861 of the Code of Commerce (CCom). The first instance Court dismissed this defence, considering that 'missing cargo' did not fit the definition of damage or simple average stated in arts 822 and 861 of the CCom. All the bills of lading that were issued were clean, and the missing cargo was evidenced once it was unloaded and weighed at the destination. Hence, the Court admitted the claim and declared the defendants' joint liability, ordering them to pay compensation. On appeal, the High Court (HC) affirmed the decision. The defendant recurred the decision on cassation before the Supreme Court (SC).

Held: The SC dismissed the recourse.

The SC agreed with the lower Courts that arts 822 and 861 do not refer to missing cargo. The defendants argued that arts 603 and 600 of the CCom applied by the lower Court do not govern the joint liability but rather the apportioned liability of the ship's co-owners. The SC stated that the first of the rules prescribes the civil liability of shipowners to third parties for the conduct of the master in the custody of the cargo. Likewise, according to the second provision, the shipowner's liability also arises regarding the shipping company or carrier. This liability must be assessed and interpreted systematically in accordance with the Hague Rules. Article 1.a of the Rules specifies that the 'carrier' includes the shipowner or the charterer, who is part of a contract of carriage with a shipper. Similarly, art 2 provides that, subject to art 6, the carrier under any contract for the carriage of goods by sea, in relation to the loading, handling, stowage, transport, custody, care and unloading of the cargo, will be subject to the responsibilities and obligations and will enjoy the rights and exemptions mentioned in the following articles. These provisions make it clear that the shipowner is jointly liable with the shipping company or carrier for the proper and complete delivery of the cargo. The clean bill of lading expressed the weight of the cargo that had to be discharged at the destination. Delivering less cargo than they received made the defendants liable.