The plaintiff claimed EUR 6,988.12 for damage done to its consignments of ceramic raw materials, lampshades, and lampshade holders, transported by the defendant from Italy to Malta. The defendant denied liability, contending that the carriage of goods took place under the CMR Convention, and that the rules of that Convention should therefore apply.

Held: Judgment for the plaintiff.

The defendant was liable for the plaintiff's goods from the time that its agent Ignazio Messina & Co took possession of the goods from the suppliers in Italy until the moment the goods were brought to Malta, including therefore the voyage by ship. The defendant cannot claim to be relieved of its responsibilities in respect of the cargo. This goes completely against the concepts on which the legal framework of carriage of goods is based: see the definition of 'carriage of goods' in the Schedule to the Carriage of Goods by Sea Act, Ch 140 of the Laws of Malta.

In this respect, reference is made to the observations of the Court of Appeal in Atlas Insurance Agency Ltd NOE v Gollcher Co Ltd NOE, Civil Appeal No 514/02 decided on 23 June 2004 (CMI1895):

In the maritime field, the laws governing the transport of goods from one destination to another usually comprise three distinct phases. That is, the phase prior to the loading of the goods on board the ship, the phase relating to the carriage by sea, and the phase subsequent to the unloading of the goods from the ship. These three phases are well regulated by the Brussels Convention 1924, better known as the Hague Rules, codified in our Law in Chapter 140 - the Carriage of Goods by Sea Act. Particular provisions of the said Convention are attached to the above phases. Thus, for example, with the first and third phases, Article 7 expressly provides that the contracting parties may enter into an agreement or impose conditions, reservations, or exemptions 'as to the responsibility and liability of the carrier of the ship for the loss or damage to, in connection with, the custody and care and handling of goods prior to loading on, and subsequent to, the discharge from the ship on which the goods are carried by sea'. As regards the actual shipping phase, the provisions of Article 3 of the Hague Rules apply, inter alia, requiring that 'the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried' (subsection 2). Having affirmed these preliminaries, the proof of loading on the ship is constituted by the bill of lading. This is better stated in Article 325 of the Commercial Code (Chapter 13) which provides for this purpose that 'the bill of lading shall prove between all the parties interested in the cargo, as well as between them and the insurer, without prejudice to proof to the contrary'. ... As a rule these bills of lading contain the terms and conditions that apply to the particular carrier. ... It is very natural that the burden of proof on the parties depends on the content and scope of these clauses. This is also because these same clauses create by their very nature certain presumptions which constitute rules of proof. This means that in the case of marine cargo claims the distribution of the burden of proof is in reality more complex than that of other ordinary civil or commercial matters. By way of illustration, as we regularly find in most bills, when we find the printed clause 'shipped in good order and condition', 'it must be presumed that the goods have been received on board in good condition because the master is responsible for the damage to the loaded goods' (Kollez vol XXIV p 995) and then it is expected that the cargo will be unloaded in the same good condition (Mamo NOE v Mifsud NOE, Commercial Appeal, 5 June 1987). Of course, this presumption is juris tantum, and allows for contrary evidence, which in such a case is incumbent on the ship.

While the plaintiff has succeeded in establishing satisfactorily that the goods imported from Italy through the transport service offered to it by the defendant arrived in Malta with considerable damage, the defendant has failed to prove just as satisfactorily that it and/or Ignazio Messina & Co are not liable for such damage to the plaintiff's goods.

The defendant also argued that the carriage of the goods in question took place under the CMR Convention. It is a well-established principle that in order for the CMR Convention to apply, the parties must expressly agree to that effect. The only mention in this regard is in the estimate of 5 February 2007 stating that unless otherwise indicated, all shipments are carried out on a 'FIOS Basis' and that 'The standard conditions of carriage of sea / air / land shall apply in all instances as per carrier's Bill of Lading, CMR, AWB or WayBill, whichever is applicable'. It is clear that the parties did not agree that the carriage of the goods in question would be governed entirely by the CMR Convention, but rather that carriage by land - if any, and if it turned out that the damage occurred on the land leg, which in no way emerges from the evidence - will be governed by the CMR Convention. It is therefore clear that this argument is absolutely unfounded and does not deserve to be upheld.

As regards the quantum of damages suffered by the plaintiff, the Court is of the opinion that the damages actually suffered and duly proved amount to EUR 6,098.90.