The first appellant, Narest Portugal, was a commercial catering company. The second appellant, Narest Cabo Verde, was a commercial food importer and trader in Cape Verde. The appellants agreed that the former would supply food products to the latter. As part of this activity, Narest Portugal committed to supplying Narest Cabo Verde with fresh frozen meat products valued at EUR 28,903.20. Narest Portugal bought the meat from Portral, Comércio e Indústria de Carnes Lda (Portral). Narest Portugal commissioned a freight forwarder, Logis - Soluções Logísticas Integradas SA (Logis), to carry out all operations necessary for the carriage of the meat from Portugal to the Port of Palmeira on the Island do Sal, from where Translogistic Lda (Translogistic) would in turn deliver the meat to Narest Cabo Verde.

The delivery of the meat was made by Portral to Logis, who took an empty container by truck to Portral's facilities in Sintra, where it was loaded. Narest Portugal and Portral informed Logis that the meat had to be kept at a temperature not exceeding -18º C. The truck left Portral's facilities in Sintra only after its temperature had been stabilised. The container was sealed by Logis or its agent. Logis instructed a maritime carrier (D), represented by its agent (E), to carry out the maritime carriage. D, through E, was informed that the container contained food products and the bill of lading specified a required temperature of -18º C. The container was carried on the wrong vessel and had to be reshipped. On arrival, the container was unloaded and transported to the cold terminal area. There, an attempt was made to connect the container, without success. The meat was found to have thawed.

The appellants successfully sued Logis for compensation. Both the appellants and Logis appealed against the first instance judgment. The appellants disputed the factual findings of the Court, arguing that Logis acted as a 'shipper' throughout on the documentation, and was therefore acting as an agent of the first appellant rather than as a carrier in its own right. Logis challenged the findings regarding its limitation of liability.

Held: Appeal dismissed. First instance judgment confirmed in its entirety.

The Court of Appeal held that it was evident that Logis assumed the typical obligations of the transport contract, which passed the control of the goods to be dispatched to Cape Verde to Logis, from the time of receiving them until their subsequent delivery, even if for that purpose Logis had subcontracted the material realisation of these transport operations to third parties. The bill of lading identifying Logis as the 'shipper', ie 'consignor', and Translogistic as the 'consignee', was not enough to remove, on its own, the proof of what was effectively agreed between the parties. This document served as written proof for the existence of a contract of carriage by sea, but in conjunction with the other documentary evidence, was nothing more than the mere expression of the material (factual) reality that Logis, in that document, assumed the role of 'consignor', but did so in the interests of the first appellant.

The specifics of this case are that the goods were transported, either by land or by sea, by different entities, although all under the control and command of Logis. Therefore, the situation is one of 'multimodal transport'. Article 1.1 of the Multimodal Transport Convention 1980 defines international multimodal freight transport as:

[T]he carriage of goods by at least two different modes of transport on the basis of a multimodal transport contract from a place in one country at which the goods are taken in charge by the multimodal transport operator to a place designated for delivery situated in a different country. The operations of pick-up and delivery of goods carried out in the performance of a unimodal transport contract, as defined in such contract, shall not be considered as international multimodal transport. 

The multimodal transport contract is a subspecies of the transport contract, involving: 1) the consignor (shipper) who assumes the obligation to deliver the goods to the multimodal transport operator, delivering all documents relating to and describing the goods, and undertaking to pay the transport price, retaining a right of disposal and the right to move the goods, in the same state of conservation in which it delivered them; and 2) the multimodal transport operator who contractually assumes the obligation to transport the goods, in the same state of conservation in which it received them, and to deliver them at the destination, with the right, in return, to the financial benefit referred to as freight.

Admittedly, there is no specific discipline for multimodal transport, be it at domestic or international law, and the Multimodal Transport Convention 1980 has not even entered into force. Therefore, the legal solution that has been presented as the most correct one has been, whenever possible, to fragment multimodal transport into as many unimodal services as there were in each specific case, applying to each one of these services the particular legal regime that governs it. In this case, it was proved that the damages occurred during the course of maritime transport, which is governed by the Hague Rules. The Hague Rules include transport from the moment the goods are loaded on board the ship until the moment they are unloaded (art 1.e). In practice, the bill of lading acts as the document of title to the cargo that gives shape to the contract of transport by sea (art 1.b). The 'shipowner' (carrier - see art 1.a) is responsible for the loading, handling, stowage, carriage, custody, care and discharge of the goods (art 2), being obliged to exercise, with reasonable diligence, the obligations to prepare and put in good condition the holds, refrigerators and all other parts of the ship on which the goods are loaded (art 3.1.c), and to maintain the condition of the goods received, according to the bill of lading (art 3.3). Any clause, convention or agreement in a transport contract that exonerates the shipowner or the ship from liability for loss or damage concerning goods arising from negligence, fault or omission of duties or obligations provided for in art 3 of the Convention is null and void (art 3.8).

Objectively, Logis's performance, even if materially performed by D at its command, does not correspond to the full and punctual fulfilment of the agreement. None of the objective factors of exclusion of liability provided for in arts 4.1 and 4.2 of the Hague Rules were alleged or proved.

Logis further argued that its civil liability should be limited to only one package, consisting of the container itself, which would correspond to a limit of EUR 498.80 on an application of art 4.5 of the Hague Rules, as updated by Portuguese domestic law. In this case, the value of the goods transported was not indicated in the bill of lading. Only the number of 'units' ('volumes') was indicated. The question is whether the limit must apply to the number of 'items' of damaged goods or the number of 'containers' where the goods are packed together. It is clear that, if the bill of lading only enumerates the existence of a container, there is no discussion: there will only be a limit of EUR 498.80 per container. The problem is when in the bill of lading a container is identified, with a description of its contents, thereby identifying the number of packages or units that are contained inside, without mentioning their value.

Having reviewed the case law, the Court held that where a container is described as containing 1,835 units ('volumes'), the limit of compensation resulting from the Hague Rules will be 1,835 x EUR 498.80 = EUR 915,298.00. Therefore, the indemnity fixed by the first instance Court does not exceed the limit resulting from the application of art 4.5 of the Hague Rules. The Court further concluded that this provision does not establish any limit on indemnifiable damages, so the indemnity must not only cover the material losses of the goods, but must also include other expenses and, for example, lost profits, in so far as they constitute 'loss or damage to or in connexion with goods'.