The plaintiff bought a second-hand Ford Transit van, a second-hand Ford Escort van, a Ford engine, and some other spare parts from Philip Mizzi, the manager of the Arandale Motor Co in Cheshire, England, for GBP 7,750. The plaintiff instructed the defendant to transport these vehicles and parts from England to Malta, and the defendant accepted this assignment. Despite the fact that the defendant informed the plaintiff on several occasions that they had arrived in Malta, in reality they never did.

The defendant contended that it had no legal relationship with the plaintiff, and that it never acted in its own name, but rather on behalf of and as a local agent of Atlantica SpA di Navigazione, an Italian company. Alternatively, the plaintiff's claim was prescribed by the one-year term of art 3.6 of the Hague Rules, appended as the Schedule to the Carriage of Goods by Sea Act (Ch 140 of the Laws of Malta).

The First Hall of the Civil Court dismissed the plaintiff's claims as prescribed (see CMI1893). The Court held that the goods should have arrived in Malta on 28 November 2003, and the claim was brought by the plaintiff on 30 November 2004, two days after the end of the one-year limitation period. The Court further held that it was a well-established principle that the limitation term referred to in art 3.6 of the Hague Rules was a peremptory or expiration term (see the judgment of the Court of Appeal in The Cargo Handling Co Ltd v Messrs John Abela Ltd of 7 July 2003; the judgment of the Commercial Court in Fenech Adami NOE v Gatt of 23 November 1970; as well as the judgment of the Commercial Court in Bianchi NOE v Mizzi NOE of 6 March 1978.)

The plaintiff appealed to the Court of Appeal.

Held: Appeal dismissed.

There is no disagreement between the parties as to the applicability of art 3.6 of the Hague Rules to this case. It follows, according to the first instance Court, that the goods should have been delivered on 28 November 2003, but the case was brought by the plaintiff on 30 November 2004, two days after the expiration of the one-year limitation period. The Court, therefore, declared the action extinguished and rejected the plaintiff's claim.

The plaintiff submits that although the goods, according to the bill of lading, were to arrive in Malta on 28 November 2004, when they did not arrive on the indicated date, an 'agreement' was reached between the parties that the cargo was to be brought to Malta on another ship the following week; even then, however, the goods did not arrive in Malta. This Court does not agree that this arrangement had the effect of extending the one-year deadline for the bringing of an action as contemplated in art 3.6. The fact remains that according to the bill of lading, the goods should have been delivered on 28 November 2003. It is the bill of lading which establishes with certainty the date on which the goods are to be delivered to the consignee, and it is with regard to that date that the law is binding. Trade-related issues must be clear and determined, leaving no room for ambiguity, and when the law refers to the date when the goods were 'due to be delivered', it is referring to the date when the same, according to the bill of lading, had to be delivered.

In this case, it does not appear that the defendant accepted responsibility for its failure to respond. The fact that a settlement offer was made without prejudice to the plaintiff does not mean that the defendant accepted its responsibility, so that an enforceable 'contract' was created. The plaintiff is not basing his action on the defendant's alleged acceptance of liability, but on the non-performance of the contract of carriage of goods, and this action will be valid only if it was brought within one year from when the goods are due to be delivered, and no interruption of this term was granted.

The limitation period, as Giorgi teaches (Teoria delle Obbligazioni, vol VIII, para 225), 'affects the law more than the action'. It is only when the debtor's conduct can be considered to create a new right that the creditor can act after the fixed term. Such acceptance or recognition must be clear, formal, explicit, and unconditional - see Zarb v Mira Motors Sales Ltd, decided by this Court on 2 December 2005.

In this case, such circumstances do not arise. Nor can it be said that the fact that the defendant invoked, as far as possible, the defence of limitation of liability as stipulated in the contract of carriage agreed between the two parties, amounted to a waiver of the limitation of action period, or an extension.

For the rest, it appears that this action was brought after the one-year anniversary of the delivery of the goods.