Conservas Hoya SA (the plaintiff) brought a claim for damage to a cargo of anchovies against an insurance company, Aurora Polar SA de Seguros (the defendant). The court of first instance in Bilbao dismissed the plaintiff's claim. The plaintiff appealed to the Provincial Court of Bilbao, which dismissed the plaintiff's appeal. The plaintiff filed a cassation appeal in the Supreme Court, arguing that the courts below had not taken into account relevant documentation regarding the cause of the cargo damage.

Held: Appeal dismissed.

The relevant documents are a certificate of analysis of the Spanish Maritime Commissariat, which shows that the poor condition of the cargo transported on the Rio Olivia (anchovies packed in plastic barrels of which 382 barrels of the total of 591 barrels loaded were spoiled) was due to a rise in temperature. Also, the attached technical report issued by the Veterinary Inspector, Mr Eusebio, points not only to the circumstance of excessive external heat, but also to the abnormal presence of intestinal contents in the anchovies, causing alteration to the maturation of the meat.

These documents that the plaintiff contributed to the lawsuit and integrated into its claim, were taken into account and appreciated in detail by the court delivering judgment. They are expressly mentioned in counsels' arguments and in the judgment. The probative evaluation of the documents is a matter for the judges and not the parties. A concrete and precise error on the part of the judges is not indicated.

The same applies to the document consisting of a photocopy of the ship's temperatures during the voyage, which shows that they remained between 6.8 and 8.6 degrees Centigrade. Simple and uncertified photocopies are not documents admissible in litigation, and no mistake was made by the judges. Hypotheses were speculated on and argued about. The possible breakdown of the refrigerators that contained the cargo of anchovies was not established in the judgment, in the absence of concrete and decisive proof in this regard.

The analysis of the facts must begin with the bill of lading dated 30 March 1987, in which it was stated that the cargo was received and shipped clean on board. The bill of lading fulfils a triple function, since it is a document affecting the burden of proof, acts as a document of title and also acts as a transferable instrument. Regarding the first aspect that is relevant here, according to art 706 of the Commercial Code, the bill of lading shall constitute final evidence for all parties concerned in the cargo and between these and the insurers, except for evidence to the contrary in the case of the latter. This gives effect to the Hague Rules and is usually based on the declarations of the shipper itself, notwithstanding that the carrier can make reservations that are reasonable and well founded.

It is not an absolute and watertight presumption, as it is devoid of the most forceful effects that attend transport documents in land transport, according to art 35 of the Commercial Code. For all these reasons, the possible abnormal operation of the refrigerators and the precise moment in which there had been an increase and excess of external heat were ruled out and the judgment appealed did not prove that this had occurred onboard.

This leads the Court to take into account the certified and concurrent cause of part of the cargo of anchovies being affected by intestinal contents, which provoked the alteration of the maturation of the meat. This constitutes a risk not covered by the defendant. It only affected part of the cargo, since the plaintiff received 200 barrels in perfect condition, despite having stowed the healthy barrels and the infected ones in the same hold of the ship.

The judgments of this Chamber, dated 13 April and 17 May 1984, which the plaintiff cites in support of its appeal, while similar in terms of subject matter, do not apply to this case. In those instances there was a lack of cold, either because the refrigerators stopped, became obstructed or were prevented from working. The judgments referred to only contemplate these circumstances and not, as is the case here, other determinants.