This was a subrogated claim brought by the plaintiff insurer, Elmo Insurance Ltd, against the defendant, John Ripard & Son (Shipping) Ltd, for EUR 6,873.30 representing the indemnity paid out in favour of the plaintiff's insured, Mediterranean Crafts Co Ltd. This claim arose out of damage caused to a kiln shipped from Genoa, Italy, to Malta, which transport the defendant had been tasked to arrange. Sea carriage was undertaken by Mediterranean Shipping Co SA (MSC) on the defendant's behalf.

The defendant made the following preliminary alternative arguments:

1. This Court lacked jurisdiction because the parties had agreed in their sea waybill to an exclusive jurisdiction clause in favour of the High Court of London;
2. The defendant in its own name had no juridical relationship with Mediterranean Crafts Co Ltd;
3. The sea waybill named the consignee as Mediterranean Ceramics and not Mediterranean Crafts Co Ltd, and therefore there was no juridical relationship between the parties;
4. The plaintiff's claim was prescribed in terms of art 544.e of the Commercial Code as well as in accordance with the sea waybill. Notice of arrival was on 19 July 2019 and the case was only initiated on 22 July 2020;
5. The goods were delivered in the same state as they were received by the defendant as the agent of MSC. Damage occurred after delivery to Mediterranean Crafts Co Ltd's hauliers;
6. Mediterranean Crafts Co Ltd and the plaintiff failed to do a survey at the right time and present proof of the alleged damage and damages. The damages are contested;
7. Neither the plaintiff nor Mediterranean Crafts Co Ltd demanded damages from the defendant after delivery; and
8. There is an agreement in the sea waybill regarding the defendant's limitation of liability.

In a previous judgment delivered by this Court on 4 February 2021, the first defence argument regarding jurisdiction was rejected.

Held: Judgment for the plaintiff in the amount of EUR 6,714.25.

The second defence argument is manifestly unfounded because a legal relationship does not arise only from a direct contractual relationship. The plaintiff and its insured had a contractual relationship arising from the insurance policy. The plaintiff sued the defendant to reimburse the amount that it paid to its insured based on its obligation according to the insurance policy, an amount representing the damages suffered by its insured allegedly through the fault of the defendant. This payment was made by conventional contextual subrogation in accordance with the provisions of art 1164 ff of the Civil Code, with the result that the plaintiff entered into the rights of its insured against its alleged debtor, the defendant.

As for the defendant's argument that it has no legal relationship with Mediterranean Crafts Co Ltd because the consignee is indicated in the sea waybill as 'Mediterranean Ceramics', this is also baseless. 'Mediterranean Ceramics' is the business name of the company Mediterranean Crafts Co Ltd. As a firm ie trade name, this Court understands that 'Mediterranean Ceramics' is not a body endowed with juridical personality. Consequently, the rights and obligations owed to the consignee in the sea waybill necessarily belong to the natural or legal person carrying on business under that name. From the evidence it appears that this is indeed the insured, Mediterranean Crafts Co Ltd, which ordered and received the kiln which was delivered from Genoa, Italy, to Malta Freeport Terminals Ltd by the defendant according to an assignment given to it directly by the same company.

The defendant was sued in its own name, and also as an agent of the foreign company MSC. It appears that while it is true that the defendant could have been acting as an agent, the paperwork regarding the delivery refers to the defendant in its own name. It appears that the defendant had a material part in the delivery of the goods, and consequently can be considered, at least on a prima facie basis, as a legitimate party to respond to the plaintiff's claim. The ascertainment at this stage that the defendant is a suitable person to respond to the plaintiff's claim is without prejudice to later considerations that may affect the merits of the case.

As to prescription, art 544.e of Cap 13 provides: 'The following actions are subject to prescription as will be stated below: ... (e) any action for the delivery of goods, after one year from the day the vessel arrives.' The Court does not agree that the defendant is right to invoke the provisions of article 544.e of the Commercial Code in support of prescription of this action and considers that this article is not applicable to the action before it. The plaintiff insurer's claim is not for the delivery of the goods, or for the payment of damages arising from the failure of the delivery or part thereof, but is a request for the payment of damages arising from the contract for delivery of the goods. In fact, the goods that were ordered by the insured of the plaintiff company were transported by the defendant, arrived in Malta, and were duly delivered to it on 22 July 2019.

In the judgment of the Court of Appeal (Inf) of 11 January 2006 in Express Trailers Ltd v HH Ltd, it was said:

From the clear words of the aforementioned provision it is very evident that the prescription of a year is contemplated to have a direct connection with the 'delivery of the goods". This is in the sense that the receiver who complains that he did not receive the goods, in whole or in part, is given the term, in the prescribed provision, for proposing the action. This is even in the case that such action is one for the compensation of damages due to lack of delivery.

Accordingly, the fourth defence argument is also rejected.

From the evidence, it is unlikely that the damage to the kiln could have occurred after discharge, during the journey from the port of Marsaxlokk to the Mediterranean Ceramics factory in Ta' Qali. The kiln always remained on the flat rack after it arrived in Malta and was not taken down from it until it arrived at the factory in Ta' Qali. Moreover, the damage was evident as soon as the kiln was lifted by crane from the flat pack. On a balance of probabilities, the damage could only have occurred during the process of loading or unloading the kiln on the means of transport provided by the defendant.

The defendant exhibited a photocopy of a sea waybill issued by its agent, MSC, which, it claims, constitutes evidence of the contract of carriage and delivery of cargo transported. However, no one testified regarding the legal effect of this document and in any case, the conditions listed in the document exhibited by the defendant are completely illegible. In addition, 'The US Carriage of Goods by Sea Act 1936' (COGSA), which is referred to in this document, is a US statute that regulates the rights and obligations between the carriers of goods by sea in relation to shipments of goods to and from the US and has no force of law in Malta. Therefore, the Court must be reassured as to the express conditions of this contract which concerns, after all, the carriage of goods between two European countries.

The Court also notes that this sea waybill was issued on 17 August 2020, while the goods were delivered more than a year before, on 22 July 2019. This waybill is not signed, and if not for the fact that the plaintiff at no time disputed that this was the contract that regulated the carriage of goods in this case, the Court would have had serious doubts about its validity as well as its applicability to the shipment in question. However, since there is no good proof of the terms of this contract, the Court cannot apply it. It was up to the defendant to present good proof of the content and provisions of the contract of carriage that apply to regulate its relationship with its client, in this case the insured, which was not done properly. In these circumstances, the general principles of the Civil Code regarding the responsibility of those who have in their possession property belonging to others are applicable. It has neither been proven nor alleged that this damage was caused by an accident or by force majeure which exonerates the defendant and/or its agent from the responsibility for that damage. Accordingly, the defendant must respond to the damages caused to its client. The defendant is the carrier and it remains so responsible, regardless of the fact that it has hired another person for that work or service.

Finally, the defendant argued that its liability should be limited according to the agreement in the sea waybill regarding limitation of liability. As has already been stated, no proof has been brought as to the conditions expressly agreed upon or applicable according to the contract of carriage, among them any limitation of the carrier's liability. Accordingly, this argument cannot be accepted.