Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Carriage of goods
Is your jurisdiction party to any international conventions on the carriage of goods by sea? If so, does the relevant domestic implementing law contain any notable modifications (eg, extensions to the scope of application)?
Portugal is a party to the 1924 Brussels Convention on the unification of certain rules of law relating to bills of lading. A national law dated October 1986 is applicable to those situations not covered by the Brussels Convention. The national law updated some concepts not clearly defined in the Brussels Convention. The rules on the liability of the carrier and the limits of liability established in the Brussels Convention were extended to cargo carried on deck with the approval of the shipper, to carriage on deck performed on container ships and when the cargo is obliged to be carried on deck on the basis of mandatory legal provisions.
What is the official extent of the carrier’s responsibility for goods?
Since 1986, when the 1924 Brussels Convention was updated, the extent has corresponded to €498.80 per unit or package described on the bill of lading.
Contractual limitation of liability
May parties contract out of any legal provisions governing cargo liability?
Only to establish limits of liability or obligations of the carrier wider than those established in the 1924 Brussels Convention.
Title to sue
Who has title to sue on a bill of lading?
In principle, the parties entitled to sue on a bill of lading are those parties identified on the bill of lading – the shipper, the carrier and the consignee.
What is the time bar for cargo claims?
The time bar for cargo claims is one year counting from the delivery of the cargo to the receiver/port operator. Provided that the agreement of the carrier is obtained before time bare elapses, this limit may be validly extended.
Definition of ‘carrier’ and ‘goods’
How are ‘carrier’ and ‘goods’ defined in respect of cargo claims? Is there any especially pertinent case law on this issue?
The definition of ‘goods’ is included in Article 1 of the 1924 Brussels Convention. The ‘carrier’ is normally defined as the one entering a contract of carriage. According to national law, if the carrier is not identifiable by the terms of the bill of lading, it is possible to sue the ship that performed the transport – a very particular rule allowing the carrying ship to acquire juridical personality for the purpose of the application of this rule.
Defences available to carrier
Under what circumstances may the carrier rely on the perils of the sea defence? What other defences are available to the carrier?
As Portugal is a party to the 1924 Brussels Convention, all exclusion clauses referred to in Article 4(2) are available to the carrier. Perils of the sea are included in line c of Article 4(2). It will be for the carrier to produce suitable evidence of the existence of the defences put forward, whereas opponents will eventually try to disqualify such facts as excluding the carrier’s liability. Decisions will take into account the analysis of the particular facts of the case in dispute.
What legal protections and defences against cargo claims are available to agents of the carrier and other third parties (eg, Himalaya clauses)?
In principle, the carrier will be liable for the acts of the agents contracted for the fulfilment of the contract of carriage; therefore, normally, agents are considered as acting for the carrier. Nevertheless, according to national law the carrier has a recourse right against the port operator in case of damages to the cargo under the contract of carriage. National law also governs the relationship between the shipping agent and the owner, whereby shipping agents are considered as acting for the owner.
Deviation from route
Under what circumstances is deviation from the agreed route allowed?
No particular rules apply to this subject. The rules stated on the bill of lading, provided that they are not contrary to the 1924 Brussels Convention, may apply. Basically, deviation should be reasonable and determined by non-foreseeable reasons.
Claims against shipper
What claims can the carrier pursue in respect of the shipper’s failure to meet its obligations?
The carrier has a retention right against the shipper in case on non-payment of credits arising from the contract of carriage. The carrier may also pursue the shipper in respect of all claims regarding damages caused by the cargo to the carrier or carrier’s assets.
Multimodal carriage of goods
How is multimodal carriage regulated in your jurisdiction?
No particular rules govern this subject. The rules applicable to the particular contract of carriage at the origin of the claim in dispute will be applicable.
Click here to view full article.