The defendant carrier, Hapag-Lloyd Container Line GmbH (Hapag), applied for a motion of inadmissibility in the context of an action for damages on the basis of lack of legal interest and prescription of the remedy.

The plaintiff, Gea Srl (Gea), based in San Fernando, Italy, is a fruit exporter. In November 2002, Sagi International Inc (Sagi), of Montreal, placed an order with Gea for the purchase of kiwifruit. The carriage of the goods from Italy to Canada was entrusted to Hapag by Sagi. On arrival, the cargo was found to be damaged. Sagi thus refused to pay Gea the balance of the sale price. Proceedings were brought by Sagi against Hapag, alleging negligence in the carriage of the goods and a delay in taking possession of them and delivering them. However, during the proceedings, Sagi assigned its property in the goods. Now Gea turns to Hapag for payment of the sums which it claims to be due.

Held: Motion dismissed with costs.

As to legal interest, ownership of the goods had not been retained by Gea. Once delivered to the port of Genoa, ownership transferred to Sagi. As it was Sagi who had retained Hapag's services for transportation, a contractual relationship existed between these two companies. There is therefore no contractual link between Gea and Hapag. But the basis for Gea's claim against Hapag is extra-contractual liability based on art 1457 of the Quebec Civil Code. Where a carrier assumes responsibility and fails to fulfil its duty, it is liable for the damage it causes through this fault to others and bound to repair this damage, whether physical, moral or material. It is also required, in certain cases, to make good the damage caused to others by the fact or the fault of another person or by the fact that the goods were in its custody.

As to prescription, Hapag relies on art 3.6 of the Hague-Visby Rules and cl 6 of the terms and conditions of the sea waybill, which provides: 'In any event, the Carrier shall be discharged from all liability in respect of loss or damage to/of the Goods, non-delivery, mis-delivery, delay or any other loss or damage connected or related to the Carriage unless suit is brought within one (1) year after delivery of the Goods or the date when the Goods should have been delivered'. Hapag argues that, as the last container was delivered in January 2003 and the action was instituted on 28 January 2005, it is time-barred. In Sumitomo Marine & Fire Insurance Co Ltd v Canadian National Railway Co, 2004 CanLII 42709 (QC CS) Lévesque J wrote: 'If CN is only a de facto transporter of goods in the performance of the transport contract, it has no contractual relationship with the sender and it can be sued extra-contractually according to the principles of ordinary law'. The present case raises the same legal issues of no contractual link between the parties, damage allegedly caused to a third party by a co-contractor, and the right of the third party to sue extra-contractually. At the time, the limitation period being three years, the right of action is therefore not time-barred.