A Greek company bought a yacht F in the United States. A bill of lading with an annotation 'non-negotiable unless delivered to order' was issued for the transportation of the F from the Everglades, USA, to Piraeus, Greece, on vessel G. The company owning the yacht was referred to as the shipper/exporter, and another party was listed as the consignee.

The yacht was unloaded at the Elefsis Port's anchorage using a floating crane instead of at the agreed Piraeus Port where the yacht would have been on the cradle as it was unloaded. The yacht fell onto the vessel while being lifted, which caused damage and diminished its value. The yacht owner initiated legal proceedings against the defendants. The Court of First Instance rejected its claim as unfounded in substance.

Held: The appeal is dismissed.

From the combination of arts 1.b, 2, 3.1, 5, 10.b and 10.c of the Hague-Visby Rules, it follows that these Rules are applicable in Greece and that in this case the fact that this is international maritime transport is based on the objective criterion that the ports of loading and unloading are located in different States.

Furthermore, arts 3.1 and 4.1 of the Hague-Visby Rules establish the legitimate objective liability of the carrier, in the sense that, in the event of loss of or damage to cargo, the carrier has the burden of proving that it is not at fault. The classification of fault is that the carrier is liable for fraudulent intent, gross negligence, and ordinary negligence. Ordinary negligence is defined as the failure to exercise the care of a reasonably prudent carrier. The liability of the maritime carrier shall, in principle, cover loss of or damage to property, although this is not expressly mentioned in art 4 of the Hague-Visby Rules.

According to arts 1.e and 2 of the Hague-Visby Rules, the loss or damage must be connected with the loading, handling, stowage, carriage, transport, custody, care, and discharge of the goods, whereas carriage of goods by sea covers only the period of the sea shipment, starting with the loading of the goods and ending with their unloading.

Pursuant to art 3.2 of the Hague-Visby Rules, the loading and stowage, consisting of placing and arranging the goods in the hull of the ship or in the designated spaces for their reception and securing them in every suitable manner, is carried out by the carrier, who is responsible for all care. Even if the carrier engages stevedores to carry out the work, it is not be relieved of liability for the stevedores' acts or unauthorised stowage by them. Moreover, the carrier's agents, within the meaning of art 4.2.i of the Hague-Visby Rules, include all persons employed by the carrier who contribute to the performance of its obligation to carry the goods. These include the master, the crew, the navigator, the carrier's servants ashore, agents, freight brokers, loaders and unloaders, and stevedores. It also follows from the combination of arts 4.1 and 4.5.b of the Hague-Visby Rules that in the case of loss of or damage to goods in maritime transport, the total amount of compensation is to be calculated on the basis of the value of such goods at the place and time when they are unloaded from the ship or when they should have been unloaded in accordance with the contract of carriage.

Furthermore, during the performance of the contract, it is possible for the contracting parties to commit a tort against each other, if the act or omission is culpable and unlawful even without the contractual relationship. A tortious act or omission in breach of a contract may, in addition to a claim under the contract, also give rise to a claim in tort. In this case there is a confluence of contractual and tortious liability, and the claimant has the right (discretion) to base its claim for damages either on the contract or on the tortious act or, in an ancillary manner, on both.

When an action in tort is brought, either against the carrier or against its agents, art 4 bis of the Rules provides that the limits of liability apply to any claim against them for loss of or damage to goods, whether the claim is based on contractual or non-contractual (tortious) liability. Namely:

1) The principle of the operative confluence of claims is adopted, according to which the limitations applicable to contractual liability extend to non-contractual liability when the latter is based on the same event;

2) The principle of protection enjoyed by the carrier is extended to its servants, referred to in the text of the above provision as 'servant' and 'agent'; and

3) These persons (the master or other servant of the carrier), as defendants in the tort claim, are entitled to raise in their defence the carrier's exceptions (eg the time-bar exception under art 3.6, the negligent pilotage or handling of the ship, even if the damage is due to its personal fault, or fire, etc), without, however, being substituted for the carrier's rights.

Moreover, the limitations and the reinstatement value of the damaged goods at the place and time of unloading apply. Loss of profit (art 298 CC), or other further damages resulting from damage to or loss of the goods or from deprivation of profit or benefit from their use, for restitution of lost profits, compensation for non-material damage, etc, are not reimbursed, because otherwise the beneficial provisions of the Rules for the benefit of the carrier and its servants would be rendered inapplicable. According to the prevailing view in theory and jurisprudence, the failure to take necessary measures to safeguard the cargo constitutes a mere contractual omission on the part of the carrier and its agents. Therefore, this conduct cannot be characterised as an unlawful and culpable act without the existence of the contract of carriage, and therefore there is no tort in this case.

The consignee of the yacht has the right to demand performance of the carriage contract, as well as to claim compensation for any damage caused by the loss or damage to the goods during carriage by sea. The claimant's mere status as the owner of the F does not entitle it to the rights under the disputed contract of carriage by sea for which a bill of lading was issued, and therefore entitled to the compensation for damage to the cargo against the carrier and its agents. It is necessary to transfer the obligation arising from the contract of carriage, namely by assignment in the present case.

The claimant in its initial claim claimed to have the rights of the consignee through endorsement of the bill of lading. Later, by an addendum to its action at the first instance, it claimed that it was the beneficiary of the bill of lading by virtue of an assignment contract with the consignee of the bill of lading and submitted the document for the first time to the Court of Appeal. The claimant thus attempted to change the legal basis of its action by relying on new circumstances which contradict its previous claim. The claimant's title to sue was not proven, or was proven in an unacceptable way, and therefore the claim is dismissed as unsubstantiated.