The plaintiff claimed for damage to a cargo of garlic carried from Oakland, California to the Port of Cristobal, Panama. The cargo was delivered to the consignee on 23 October 1990 and the lawsuit was filed on 16 August 1991. The bill of lading was issued and signed by Senator Linie Bremen as the carrier. However, the lawsuit was filed against the owner of the MV Hong Kong Senator which was the carrying vessel of the cargo. The parties agreed in the proceedings that the applicable law was the US COGSA, as the shipment departed from the United States and as it was indicated in the bill of lading.

The defendant argued that it was not liable for the damage because it was not a party to the contract of carriage. It also argued the action was time-barred because the bill of lading established a time bar limitation period of nine months. In addition, it alleged inherent vice of the cargo and limitation of liability to USD 500.00 per container.

The Maritime Court applied cl 1 of the bill of lading which stated that the carrier was the person that enters into a contract with the shipper. It corresponds with the definition provided by the US COGSA, which mirrors art 1.a of the Hague/Hague Visby rules, and indicates that the carrier ‘includes the owner or the charterer who enters into a contract of carriage with a shipper’. The Court noted that there was no evidence that the shipowner was a party to the contract of carriage or had assumed any responsibility for the care, custody, management or discharge of the cargo. The Court accepted the statement made in an affidavit submitted as evidence on US law asserting that, when a vessel is time-chartered and the charterer issues the bills of lading in its own name and not on behalf of the vessel or its owner, the latter is not considered the carrier under COGSA. Therefore, the court concluded that the carrier was Senator Linie Bremen, not the defendant, and dismissed the claim against the defendant. The other defences were not analysed. The plaintiff appealed the decision.

Held: The Civil Branch of the Supreme Court of Justice (SCJ), acting as Court of Maritime Appeals, upheld the decision. The SCJ agreed with the analysis of the lower court, adding that in cl 5 of the bill of lading it is stated that any claim arising from this carriage cannot be directed against any other person than the carrier. The plaintiff could have directed its claim against Senator Linie Bremen because it was who contracted with it as the carrier. The shipowner was not a party to the contract.