The plaintiff claimed freight for the carriage of ten containers of fortified wheat flour from Buenos Aires, Argentina to Manzanillo, Panama under two bills of lading (5 containers each). The containers were shipped on 19 October 1999 onboard the MV P&O Nedlloyd Houston. Once the vessel arrived in Panama, the local authorities impeded discharge of the cargo on 27 November 1999, because the defendant did not have a phytosanitary license for importation. The carrier continued the voyage and discharged the containers at the nearest port, which was Puerto Cabello, Venezuela. The containers were later transhipped onto the MV Providence, arriving at Cristobal, Panama, on 4 January 2000. On 8 January 2000, the defendant removed and inspected five containers and did not find any damage. However, on 11 January 2000, the remaining containers were abandoned by the consignee at the port premises because they arrived in apparent bad condition.

The defendant filed a counterclaim arguing that it was not informed of the exact date of the vessel’s arrival in order to get a copy of the bills of lading, to proceed with the payment of taxes and remove the merchandise in due time. The counterclaim was filed on 5 January 2001 and a copy of the lawsuit was sent via fax on 8 January 2001 to the carrier’s attorneys acting in the proceedings. The plaintiff/counter-defendant argued that the counterclaim was time-barred because it was not properly served until 22 June 2001, after the one-year period from the moment of the delivery of the goods as established in the Hague-Visby rules, which was the applicable law to the claim.

The Maritime Court stated that the delivery of the cargo took place, not on 4 January 2000 when the vessel arrived in Panama, but on 8 January 2000, when the first five containers were removed by the consignee. Hence, the one-year period started running from the latter date. As the counter-defendant had judicial representatives acting in its behalf in the proceedings, it was not necessary to publish a certification of presentation of the lawsuit nor to serve the process to interrupt the time-bar limitation. Therefore, the time-bar limitation defence was rejected. The plaintiff/counter-defendant 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 stated that, although the containers arrived at Cristobal, Panama, on 4 January 2000, they were properly delivered to the consignee on 8 January 2000, when it had the opportunity to open and inspect them. Hence, the one-year limitation period started running from this latter date and a lawsuit filed on 5 January 2001 was within this time. As the counter-defendant submitted an answer to this complaint, it is understood that it had knowledge of that complaint because it was sent to them by fax.