The claimant was a Spanish insurance company with a Greek branch. It had a reinsurance contract with a Greek insurer. An assured informed the insurer that its vehicle, located on Aegina island, had come to a standstill due to damage to its gearbox, and thus an insured event had occurred. On the next day, the vehicle was transferred to the port and loaded onto passenger ferry A by the insurer. The vehicle rolled backwards and suffered damage, amounting to EUR 13,100.60. The insurer paid the insured EUR 10,000 and was subrogated into the insured's claim against the shipowner of the A (the first defendant). The insurer then assigned its subrogated claim to the claimant. The claimant sued the shipowner and the second defendant which had issued the ticket for the vehicle to be loaded onto the A. The claimant sought EUR 15,000 for non-pecuniary damage, and EUR 10,000 for damage to the vehicle.

The Court of First Instance of Piraeus dismissed the legal action as undefined. The claimant appealed.

Held: The appeal in respect of the second defendant is dismissed. The appeal in respect of the first defendant is upheld. Decision 2816/2022 of the One Member Court of First Instance of Piraeus regarding the first defendant is overturned. The case is decided on the merits, and the legal action is dismissed.

The Court of Appeal reviewed the decision in the light of arts 1.b, 1.e, 2, 3.1, 3.2, 4.1, 4.2.a, 4.2.i, 4.5.b, 5, 7, and 10.b of the Hague-Visby Rules, and concluded the following.

Law 2107/1992 ratified the Hague-Visby Rules and the amending Protocols of 1968 and 1979 in Greece (the Hague-Visby Rules with SDR Protocol). The Rules apply in Greece since 23 June 1993. From the combination of arts 1.b, 2, 3.1, 5, and 10.b it follows that the Hague-Visby Rules apply to: a) maritime transport in which the ports of loading and unloading are located in different States and provided that they are covered by a bill of lading or other similar document constituting title for the carriage of goods by sea and; b) maritime transport between Greek ports, whether or not a bill of lading has been issued (Supreme Court Decision 343/2019 (CMI1384), Supreme Court Decision 376/2008 (CMI2414)). Articles 3.1 and 4.1 establish the carrier's wrongful objective liability in the sense that in the event of loss of, or damage to, the cargo, the latter has the burden of proving that it is not at fault. The classification of fault is similar to civil law contractual liability, ie the carrier is liable for fraudulent intent, gross negligence, and ordinary objective negligence. Ordinary objective negligence means a failure to exercise the care of the average prudent carrier. The liability of the maritime carrier concerns, in principle, loss of, or damage to, goods, although this is not expressly mentioned in art 4 of the Hague-Visby Rules. The only limitation is that the loss or damage must arise in connection with the loading, handling, stowage, carriage, custody, care, and discharge of the goods (art 2).

According to art 1.e of the Hague-Visby Rules, the carriage of goods by sea covers only the period of maritime carriage, starting with the loading of the goods and ending with their discharge. Thus, the Convention does not cover the carrier's liability for more extreme stages of carriage, ie from discharge of the goods to their receipt by the consignee, for which the carrier may validly agree to a reduction or exemption from liability for loss or damage occurring during these phases of carriage (art 7). The burden of proving the existence of the exemption clause lies with the defendant carrier, on the basis of the principle of wrongful objective liability. Furthermore, according to art 3.2, loading and stowage, which consist of placing and arranging the goods in the hull of the vessel or in the designated spaces for their reception and securing them in every suitable manner, are to be carried out by the carrier who is responsible for all care. Even where the carrier has engaged stevedores to carry out the work, it is not relieved of liability for their acts or their negligent stowage.

Furthermore, under art 4.2.a, the carrier's servants are all persons who are in its service and contribute to the fulfilment of its obligation to carry the goods, including the master, crew, navigator, carrier's employees ashore, agent, freight broker, loaders and unloaders, and stevedores. Finally, art 4.2.i establishes absence of liability as follows: 'neither the carrier nor the ship shall be responsible for loss or damage resulting from ... acts or omissions of the shipper or owner of the goods, his agent or representative'. The invocation of this exculpatory plea constitutes an objection that must be proved by the carrier.

In addition to the principal persons involved in the carriage contract, ie consignors/shippers, carriers, and consignees, a fourth person, the freight forwarder, may intervene. The forwarder differs from the carrier in that the latter carries out the carriage itself, whereas the freight forwarder undertakes to ensure that the shipper or consignee finds a carrier with whom it concludes the contract of carriage in its own name but on behalf of the shipper or consignee.

The prevailing view is that what applies to freight forwarding applies by analogy to maritime transport, given that the provisions of the CPML on chartering and the Hague-Visby Rules do not contain provisions on freight forwarders who act as intermediaries in chartering or maritime transport. Thus, the defendant maritime freight forwarder is liable only on the same grounds as the maritime carrier as guarantor of the acts of the maritime carrier or of another intermediary maritime freight forwarder, ie for the same cause in fact and in law. It follows that the freight forwarder may rely on the same grounds of absence of liability as the carrier.

Here, there was a cause of action under the Hague-Visby Rules. The Court of First Instance, which considered the action and the claim for EUR 10,000 to be indefinite, thus misinterpreted these provisions. Therefore, as regards the first defendant, the maritime carrier, the decision is annulled. This Court will decide the case on its merits.

There is no tort in this case. Thus, the claim for non-pecuniary damages was unlawful. It should be noted that according to art 4.5.b of the Hague-Visby Rules and the CPML, the value of the damaged goods at the place and time of unloading is recoverable, not loss of profit or other further loss.

The first defendant raised an objection under art 4.2.i of the Hague-Visby Rules, claiming that the damage to the vehicle was due to the negligence of the claimant's employee, who failed to secure the vehicle with the handbrake on, and left the gearbox in neutral, with the result that the vehicle was not immobilised on the deck of the ship. It is established that the vehicle was not immobilised because of the fault of the claimant's employee. He did not hand over the vehicle's keys to the ship, as he was obligated to do, and did not put the gearbox into gear in order to lock the vehicle's wheels.

It follows from the foregoing that the allegation of the first defendant under art 4.2.i of the Hague-Visby Rules is well founded in substance, and constitutes a genuine objection to the claim for compensation of the appeallant due to the wrongful objective liability of the first defendant. Accordingly, the action which was found to be lawful in respect of the first defendant must be dismissed as unfounded in substance.