A Swedish company sold timber to Egyptian companies. The timber was to be transported by a carrier on its Greek-flagged vessel from Skarnas and Holmsund, Sweden, to Alexandria, Egypt, where it was to be delivered to the purchasers on 23 January 2008. In the bills of lading issued, part of the timber was to be transported under deck and the rest on deck. On 15 January 2008, the ship sank, resulting in the total loss of the cargo. The claimant cargo insurer paid out under its policy and sought recourse from the defendant carrier.

The first instance Court awarded the claimant EUR 1,932,273.33, which was the equivalent of the invoiced amount of the entire cargo at the place and time it should have been delivered. The defendant appealed.

Held: The appeal is upheld.

From a combination of art 2 of the Law 2107/1992 and arts 1.b, 3.1, 5, 10.2, and 10.3 of the Hague-Visby Rules, it follows that the Rules apply in Greece: a) to any contract of carriage of goods by sea in which the ports of loading and discharge are located in different States, provided that such carriage is covered by a bill of lading or other similar document which constitutes a document of title; and b) to any carriage by sea between Greek ports, whether or not a bill of lading has been issued.

Under art 1.c of the Hague-Visby Rules, the definition of things constituting 'goods' is broad, and includes any kind of corporeal object, solid, liquid, or gas, provided it is capable of being manipulated by humans, except for 'live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried'. In particular, for deck cargo to be excluded from the scope of the Hague-Visby Rules, the cargo must, on the one hand, have been declared in the contract of carriage to be carried on deck and, on the other hand, be actually carried on deck. Therefore, for the application of this exception, it is not sufficient for the bill of lading to contain a clause stating that the cargo will be loaded and carried on deck, but in addition a note in the bill of lading that the goods were actually loaded and carried on deck is required. If one of the above two conditions is missing, the exception does not apply, and instead the Hague-Visby Rules apply. If the above conditions are cumulatively met, the carriage in question is governed by the applicable substantive law [ie the law governing the carriage contract], and it is on the basis of that law that the terms and conditions of the carrier's liability, the validity of any exculpatory clauses, and the question of the limitation of the claim will be determined. If the applicable law is Greek law, the carriage will be governed by arts 114, 134 ff, and 143.2.a of the Code of Private Maritime Law (CPML).

The carrier is liable, by analogy with art 135 of the CPLM and art 3 of the Hague-Visby Rules, to any party having an interest in the cargo, in the sense that the latter is the holder of a right under the contract and can be considered to be directly prejudiced by the cargo loss or damage. Such parties may include the shipper, the consignee who is the lawful holder of a bill of lading, the insurer of the cargo who has compensated the loss of the insured and has been subrogated into the rights of the insured either by statutory provision or by assignment of the relevant claim, as well as the pledgee of the cargo or the assignee of the rights of the consignee.

Article 4.5.b of the Hague-Visby Rules provides that the value of the goods shall be calculated according to the commodity exchange price or current market price or, in the absence of either, shall be calculated on the basis of the usual value of goods of the same kind and quality at the place and time at which they are, or should have been, discharged from the ship. It follows from this provision that the carrier, in the event of loss or damage to the goods, is obliged to restore the value of the goods at the place and time of discharge. In other words, the above provision establishes the measure for calculating the compensation for the loss or damage caused by the loss or damage to the cargo.

Furthermore, art 3.6 of the Hague-Visby Rules establishes a short one-year time bar for the liability of the carrier, which starts running from the delivery of the goods or from the date on which they should have been delivered. However, the Hague-Visby Rules do not further specify anything about the interruption or suspension of the time-bar period. These issues are governed by domestic Greek law.

The first instance Court correctly decided that the on-deck cargo was excluded from the Hague-Visby Rules and in this case Greek law was applicable. However, the first instance Court wrongly rejected the defendant's objection that the part of the claim relating to the on-deck cargo was also subject to a one-year time bar. The time bar for the claim in respect of the under-deck cargo had begun to run on 24 January 2008, the day after the agreed date of delivery of the transported cargo at the port of discharge.

The claimant argued that the time bar was interrupted by previous proceedings between the same parties on 4 December 2008, brought before the expiry of the one-year period, because that previous action had been finally dismissed on procedural grounds, and the present legal action was brought within six months of the finalisation of the previous legal action. So, according to the claimant, the limitation period had not yet run. This objection was rejected as unfounded. The previous proceedings between the same parties had been dismissed by the Supreme Court because the main claim was expressed in USD and the subsidiary claim in EUR, calculated as at the day of payment. Because the claim was brought in Greece and governed by Greek law, the claim should have been expressed in EUR, and calculated as at the date on which the cargo should have been delivered at the port of discharge on 23 January 2008. This dismissal by the Supreme Court is to be regarded as a rejection on substantive grounds. Therefore, the time-bar period elapsed both in respect of the on-deck and below-deck cargo after one year, without any event interrupting the time bar. The subsequent action against the defendant was only brought on 26 July 2017.