Seguros Sura Uruguay SA, an insurance company acting under an assignment of rights, claimed damages to a cargo of frozen lamb meat carried from Montevideo, Uruguay, to Shuwaikh, Kuwait, in a multimodal transport. At the destination, the container's refrigeration system evidenced damage, producing the total loss of the cargo. The lawsuit was filed against Mediterranean Shipping Co SA (MSC), the contractual and actual carrier and shipowner of the MV Laura, and Claus-Peter Offen Reederei and CPO Alicante Offer Reederei, the shipowners/charterers and registered owner, respectively, of the MV MSC Alicante.

MSC alleged limitation of the action as the lawsuit was filed after the one-year time bar established in art 3.6 of the Hague Rules. The first instance Court dismissed this defence, admitted the claim partially, and ordered MSC to pay compensation. The defendant appealed the decision, arguing that the Court erred in determining that the time to file a lawsuit was a time bar (prescripción) and not a period of expiration (caducidad). It was not a claim of a fixed amount that allowed the judicial request of payment as a method to interrupt the time bar. Hence, the payment request did not interrupt the time limitation period. It further alleged that MSC acted with reasonable diligence and complied with its obligations set out in arts 3 and 4.1 of the Hague Rules, as the cargo damage was not caused by the ship's unseaworthiness, nor by a fluctuation or lack of the right temperature. Moreover, the appellant also invoked arts 4.2.i, 4.2.m, 4.2.n and 4.2.q of the Hague Rules, alleging that the damage resulted from a pre-existing or inherent condition of the cargo, defective packaging, and omissions of the shipper or cargo owner, its agent or representative. The bill of lading also indicated it was a FCL/FCL and STC carriage, so the carrier was not involved in the stowage of the cargo in the container.

Held: The Court of Civil Appeals (CCA) affirmed the decision.

The CCA confirmed that the applicable law was the law of the place where the contract is executed, which is the place of destination. Kuwait had ratified the Hague Rules, making them applicable to this case. The CCA held that the time limitation established in art 3.6 of the Hague Rules is a prescription period that allows interruption by the judicial request of payment. Hence, the time bar was interrupted by the judicial request practised on 14 November 2017, according to art 1026 of the Code of Commerce (CCom). The interruption methods established in this rule are rules of procedure governed by the lex fori, and the judicial request is valid to interrupt the prescription.

Regarding the liability for damage, the CCA stated that in cases of missing or damaged cargo in multimodal transports, there is a joint and several liability of the different operators that compose the contract of carriage. The actual carrier is not only liable to the cargo agent or forwarder but to the consignee of the cargo as well, as it is a party of a carriage that it accepted to integrate. If the cargo described in the bill of lading was not delivered to the consignee, it is irrelevant to determine how and when the cargo was lost to assign liability. As it is an obligation of result, the debtor's conduct is irrelevant. The debtor can only exclude its liability by proving a non-imputable external cause. The joint liability results from the contract's indivisible object and the primary obligation of the defendants is the effective delivery of the cargo. The carrier's liability is not limited to the period of the voyage; it begins when the carrier receives and accepts the cargo and concludes with its delivery at the destination. It is sufficient to prove that the cargo did not arrive at the destination in good condition to invoke the carrier's liability, which can only avoid liability by proving the occurrence of an exculpatory cause. The evidence demonstrated that the boxes stowed into the container were in perfect condition, and MSC issued a 'clean' bill of lading. Article 3.4 of the Hague Rules states that the issuance of the bill of lading creates the presumption, unless proven otherwise, that the cargo described therein was received in accordance with art 3.3. Likewise, art 1210 of the CCom states that the bill of lading drafted in the form stated in art 1205 constitutes proof among all the interested parties in the cargo and freight and between them and the insurers, transferring to the shipowners the burden of proving the contrary. The photographs of the cargo at destination and the survey report indicate that the damage occurred due to the failure in the refrigerating unit that left the cargo without proper temperature for over 24 hours. Therefore, the carrier was liable for this damage.