On 7 March 2022, the appellant filed a cargo claim against freight forwarder A SA. This was a misnomer. The respondent B SA was the correct party. The two parties shared similar corporate names, shared the same registered office, and there was a high degree of commonality in the directorships and owning interests of the two companies.

The appellant sought to explain its mistake, and sought rectification and consequent replacement of the named respondent. Specifically, the appellant argued that, despite the error, the respondent had become aware of the present proceedings and, consequently, of the appellant's claim. The Court below found in favour of the respondent. The appellant appealed to the Court of Appeal.

Held: Appeal dismissed.

It is clear in regard to this issue (relating to the value or efficiency of the erroneous citation of someone who was not a party to the cause of action) that this appeal renews an issue which has already been definitively decided – a formal res judicata that this Court must respect. The decision of 15 July 2022, which has become final and binding on the Courts (both the Court below and this Court) and the parties, produces the procedural effects of res judicata. It follows, without further ado, that the appeal is unfounded.

Regarding the prescriptive period itself: As set out in art 15.1 of Decree-Law No. 255/99 of 7 July, the defendant, as a freight forwarding company, is liable to the plaintiff, its client, not only for failure to fulfil its obligations as such, but also for obligations entered into by a third party with whom it entered into the transport contract, without prejudice to the right of recourse against it. The liability arising from contracts concluded under this legislation is subject to the limits established by law or an agreement with the carrier to whom the actual performance of the transport is entrusted, unless another limit is agreed by the parties. Therefore, the rules set out in the Hague Rules, approved by Decree No 19857 of 18 May 1931, published in the Official Gazette, 1st Series, No 128 of 2 June 1932, are prima facie applicable, without prejudice to any extra-contractual liability that may arise from the freight forwarder's performance. The Hague Rules apply to the maritime transport of goods. Under the terms of art 3.6 of this Convention: 'In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.'

Here, the goods were received by the appellant's customer on 12 August 2021. As is well known, the reason for statutes of limitations is found in the principles of legal certainty and security that guide our legal system. It follows from the agreed facts that the parties entered into a contract between themselves in terms of which the respondent, licensed as a freight forwarding agent, undertook to provide the appellant with 'logistical services relating to the movement of goods or merchandise, including the conclusion, in its own name and on behalf of the other party, of transport contracts' (José A Engrácia Antunes, Direito dos Contratos Comerciais, Coimbra, 2009, p 731).

The carrier's liability must be assessed in the light of the Hague Rules, which regulates the maritime transport of goods, since this is a precondition for the freight forwarder's liability. Although the Hague Rules, intended to regulate the contract for the international carriage of goods by sea, do not apply directly to freight forwarders, it is necessary to refer to them when the freight forwarder has contracted for carriage on behalf of the shipper, by virtue of art 15 of Decree Law 255/99, which makes the shipper liable when the shipper's damages result from the carriage of goods.

The short prescription period is intended to compensate for the onerous nature of the establishment of a liability for the carriage contract that was not agreed between the parties, but rather imposed by law. The carriers that the freight forwarder typically hires to comply with its obligation to conclude a legal transaction relating to the movement of its client's cargo always benefit from very short prescription or expiry periods. Therefore, only an extension of less than one year allows freight forwarders to assert their rights of recourse against the actual carrier, since, if cargo interests exercise their rights to seek compensation close to the end of the period set out in art 16 of DL No 255/99, the freight forwarder will still have two months to safeguard its claim for compensation. The 10-month prescriptive period is therefore applicable.

Here, there was no fact interrupting the statute of limitations to be taken into account, and the obligation that the appellant intended to exercise in the proceedings against the respondent is therefore inevitably prescribed, as was decided in the decision under appeal, which is confirmed.