AGF-Unión Fénix de Seguros y Reaseguros SA (the plaintiff), an insurance company acting under an assignment of rights, claimed for damage to a cargo of 1,290 boxes of frozen seafood carried in a reefer container on the MV Inezgane from Morocco to Barcelona, Spain. The cargo was sold by Societé Nievemar SA to Frió Candal SA. Cie de Navigation du Detroit was the carrier and Naviera del Odiel de Contenedores SA (the defendant) was its agent at the port of Barcelona. The cargo was left unrefrigerated for over 24 hours, either due to an electrical failure in the power supply of the ship, or because the container was not plugged in, or because of a failure in the container’s electrical system. It was also alleged that the container was defective.

The defendant argued its lack of legal standing to be brought as a defendant in this process. It contended that, in its capacity of agent, it cannot be regarded as the carrier and be assigned the same liabilities. The first instance Court accepted this argument, stating that there was no evidence that the defendant had assumed the risk and responsibilities of the carrier, nor that the damages were caused by its fault. Consequently, the Court dismissed the claim. The plaintiff appealed the decision, arguing that art 586 of the Code of Commerce (the CCom) and art 3 of the Law on Carriage of Goods by Sea of 22 December 1949 (the LCGS 1949) assign to the agent the same liabilities of the carrier. The LCGS 1949 introduced the Hague Rules into the Spanish legal system with some modifications. Article 3 of the LCGS provides a more extensive concept of the carrier stating that 'with reference to the previous article "carrier" shall mean the owner of the vessel who equips, hires the crew, victuals and exploits it at its own risk, and also the person in charge of representing the vessel in the port in which it is located'. Hence, the agent was liable as the carrier. The Hague-Visby Rules do not contain a similar provision. The Court of Appeal held that the new social reality of maritime transport, as well as new local law, required another construction of the cited provisions and released the agent from liability. The plaintiffs recurred this decision in cassation before the Tribunal Supremo/Supreme Court (SC).

Held: The SC reversed the decision. The SC held that in its judgments in the 1990s this problem was analysed and it was determined that there was no radical change in the social reality that the invoked provisions addressed. Hence, the Court of Appeal disregarded the case law relating to the prudence of applying a sociological element in the interpretation of laws. On 16 November 1991, Spain ratified the Protocols of 1968 and 1979, introducing the Hague-Visby Rules and SDR Protocol. The SC explained that the Hague-Visby Rules, where applicable, do not exclude the application of the CCom in so far as it is not contradictory to them. The Spanish jurisprudence had consistently applied the LCGS even after the adoption of the new Rules. Article 3 of the Protocol of 1968 introduces art 4 bis.2, which refers to claims for contractual or non-contractual liability brought against an agent or servant of the carrier, who was not a an independent contractor, stating that such an agent or servant shall be entitled to avail itself of the exemptions and limitations that the carrier may rely on under the Rules. Therefore, the agent, in its capacity of representative of the carrier, is held liable for the damages claimed. This is according to art 3 of the LCGS and art 586 of the Code of Commerce (CCom), provisions that were not overruled by the adoption of the Hague-Visby Rules. The damage occurred because of a defective container, but, primarily, due to a malfunction of the refrigerating system. Hence, the carrier’s liability is unquestionable by application of the art 4 bis 2 of the Hague-Visby Rules. This liability is extended to the agent.

The defendant also argued the claim was elapsed (caducado) based in an alleged late notification of the damage. The SC rejected this defence because the notice of the damage was given within the three days established in art 3.6 of the Hague-Visby Rules. On this aspect, the Hague-Visby Rules were applicable and not art 952.2 II CCom. The SC stated that the condition observed before opening the container was not sufficient to consider that the damage was apparent. The cargo was inside a container. Once discharged from the vessel, the container was plugged into the electric power to keep the cargo frozen awaiting inspection. For a regular observer, the condition of total decomposition was not apparent at that moment.