Time bar for wrongful delivery - Recent judgment of the Swedish Supreme Court

By Cecilia Spak of Lagerlöf & Leman, Stockholm

In a case between owners and the shipper of goods (judgment by Högsta Domstolen, 10th September 1996, case no. T1237/96) the Swedish Supreme Court considered whether the one year time bar in the Swedish Maritime Code for damage, loss or delay in respect of goods applies to wrongful delivery. The Supreme Court found that it does apply.

BACKGROUND
The shipper sued owners for damages on the ground that the goods were delivered to the buyer without the buyer’s presentation of the original bill of lading. The owners denied the claim with reference to the time bar provision in Section 368, First Paragraph, 5, in the Swedish Maritime Code of 1891, which stipulates that an action for damage, loss or delay must be duly brought within one year from the time the goods were delivered or should have been delivered. The shipper claimed that wrongful delivery was not included under the one year time limit.

As readers are probably aware, a new Swedish Maritime Code entered into force in 1994.¹ For the case here described, the rules applied were those contained in the former Maritime Code of 1891. However, there are no material changes to the time bar provision in the 1994 Code. The judgment is therefore very much of interest also under the Maritime Code now in force. There are no previous Swedish cases dealing with the specific time bar question. The cases on which owners relied were Danish and Norwegian cases from the 1920s. It should also be noted that the Swedish time bar provision does not include the Hague-Visby Rules’ wording "all liability whatsoever in respect of the goods", but limits the scope of the one year time bar to "damage, loss or delay".

THE JUDGMENT
The Supreme Court started by restricting its test to whether "loss of goods" is meant to include wrongful delivery. The Court then established that the one year time bar in the Visby Rules was meant to cover the situation when goods were delivered without the presentation of a bill of lading and that the Swedish legislator was aware of that at the time of the incorporation of the Visby Rules in 1973.

The Supreme Court stressed that the legislator’s first proposal for amendments to the Swedish Maritime Code in accordance with the Visby Rules included the wording "or other loss in respect of the goods". It did not seem to matter to the Supreme Court that the proposed wording was not included in the final version. Of importance to the Supreme Court in arriving at its decision was also the intention in Scandinavia to preserve uniform maritime legislation. The maritime codes in Denmark and Norway explicitly include wrongful delivery under the one year time limit.

The Supreme Court concluded that "loss of goods" might very well include the situation in which goods have been delivered without the presentation of a bill of lading and that a one year time limit therefore applies to wrongful delivery. The claim was declared time barred.

Footnotes
1See Gard News issue 135, October 1994.