The insolvent estate of Swedbox in Malmö AB (Swedbox) claimed GBP 71,600.23 or the equivalent in SEK from Tor Line AB (Tor). Swedbox was declared insolvent on 2 April 1991. Swedbox's business was continued by the insolvent estate for some time afterwards. Among other things, deliveries were made to customers in the UK. An agreement was entered into with Juin Petite Ltd (JP). Delivery would take place against a letter of credit and bill of lading. A container with the ordered goods departed on 30 August 1991 on the M/S Tor Caledonia from Helsingborg destined for Immingham. The bill of lading was stamped 'shipped on board'. However, this notation was not dated, as a result of which the Bank of America refused to pay in accordance with the letter of credit. Due to this, JP did not receive the original bill of lading issued by Tor. Although JP did not have the original bill of lading, the goods were handed over by Tor to JP. The insolvent estate claimed from JP but it refused to pay on the ground of the incorrect notation. Tor's negligent misdelivery caused the insolvent estate damage.

Tor contested the insolvent estate's claim. In addition, Tor noted that the goods were handed over to JP on 11 September 1991. Since more than one year had elapsed between the goods being handed over and the insolvent estate's claim being submitted to the Court, Tor contended that the claim was statute-barred under s 368(1)(5) of the Maritime Code 1891 (the Code), which provided:

1. The following claims shall cease, whether the liability for them is limited or unlimited, if the action is not brought in accordance with the law in respect of ...

5. a claim for compensation due to cargo being damaged, lost or delayed in carriage or due to incorrect or incomplete information being provided in the bill of lading, within one year of the goods being handed over or should have been handed over...

The Malmö District Court found in favour of Tor and dismissed the insolvent estate's claim. The insolvent estate appealed. The Court of Appeal of Skåne and Blekinge agreed with the District Court that the claim was covered by the Code's one-year prescription period. The insolvent estate appealed to the Supreme Court.

Held: Appeal dismissed.

Section 368(1)(5) of the Code, in its wording at the time of the disputed transport, prescribed prescription of a claim for compensation due to cargo being damaged, lost, or delayed in carriage, unless the action was brought within one year from that goods have been handed over, or should have been handed over. The question in this case is whether cargo can be considered to have been lost when the goods have been handed over by the carrier to a consignee who has not presented an original bill of lading.

The statute of limitations was amended in 1973 in connection with the introduction into Swedish law of the Hague-Visby Rules. The background was that a recipient of cargo sometimes had not had enough time to get the original bill of lading into its hands when the cargo arrived. It was then not entitled to receive the cargo from the carrier. In such situations, it was common for the recipient, by providing a bank guarantee for damages, to still be able to get the goods into its possession. However, such a guarantee was expensive. In order to limit the costs of bank guarantees, the Hague-Visby Rules agreed to design the one-year rule so that it would also cover the situation where the cargo was handed over without a bill of lading being presented (see eg Diamond, The Hague-Visby Rules (1972) pp 231 and 256).

In the report on which the amendment was based, it was proposed that the one-year limitation period should apply to a claim for compensation due to the loss or damage of cargo or for 'other loss concerning the cargo' (SOU 1972:10 pp 25, 66). In the Bill, the legal text was given the above-mentioned design. The preparatory work shows that the legislator was aware that the Convention's statute of limitations would cover all liability for the goods, ie also liability for misdelivery (Bill 1973:137 p 45). The Hague-Visby Rules were introduced in Nordic co-operation with a view to preserving Nordic unity. In Denmark and Norway, the Swedish translation of the Hague-Visby Rules was used as a basis for legislative work, but explicit provisions were introduced that the one-year limitation period also applied to claims for compensation for loss due to goods being handed over without a bill of lading.

The intention was thus that the responsibility for misdelivery would be covered by the one-year limitation period. When interpreting and applying this provision, it must be taken into account that it originates in the Hague-Visby Rules. Here, as elsewhere, with regard to legislation based on an international Convention, the rules must be interpreted in the light of the original text of the Convention. Due to this, and the fact that it is possible to interpret the expression 'cargo being ... lost' so that it also applies in the case that goods have been handed over without original bills of lading, this Court finds that the statute of limitations in 368(1)(5) of the Code covers (mis)delivery responsibility.