A freight forwarder, Transnatur SA (Transnatur) hired Hapag-Lloyd AG (Hapag-Lloyd) to transport 2,810 kg of nutritional products from Valencia, Spain, to Puerto Morelos, Mexico. In the relevant sea waybill, Transnatur was listed as the shipper and Servicios Multimodal del Caribe was listed as the recipient. The latter was required to take delivery of the container, which was the property of Hapag-Lloyd, together with the cargo in it. The cargo arrived at Morelos on 19 January 2010 without incident, but was not picked up. Eventually, due to the time elapsed, the cargo was declared abandoned by the Mexican authorities, making it impossible for Hapag-Lloyd to use its container, as it was retained.

Hapag-Lloyd brought a claim against Transnatur for its expenses arising from the failure to remove the container from the destination port terminal, from its arrival on 19 January 2010 until its release/return on 9 November 2010, amounting to USD 25,650 (on the basis of the table of rates for delays published on its website, which are accrued from the eighth day at a rate of USD 90 per day), and the payment of freight which amounted to USD 3,213, 26, making a total of USD 28,863.26. The Court of first instance dismissed Hapag-Lloyd's claim on the basis of doubts in relation to the legal position assumed by Transnatur in the transport contract, as a mere commission agent or freight forwarder; and, in any case, the insertion of a Collect Freight clause in the contract. The Court held that the person obliged to pay the freight was the recipient, Servicios Multimodal del Caribe, and although it was possible to agree that the latter be named as the shipper, this was not done.

Hapag-Lloyd appealed to the Provincial Court.

Held: Appeal upheld.

In the first place, regarding the legal nature of the sea waybill, it should be noted that in the field of international maritime trade, this form of consignment note is used when it is anticipated that the transported cargo will not be sold during the journey. The sea waybill, unlike the bill of lading, lacks the properties that define documents of title, since it is not intended for negotiation. However, it constitutes a means of proof of the signed maritime transport contract and its terms.

This Court has had the opportunity to address the legal nature of the sea waybill in a judgment of 15 May 2007, where it was stated:

The scope of the application of the Brussels Convention of 1924 (the Hague-Visby Rules; arts 1.b and 10) and, consequently, of the Maritime Transport Law of 1949 (which incorporates the Rules into our legal system; art 2) is that it is carriage under the bill of lading regime, a document that, as is known, has the quality of a document of title and fulfils a triple purpose: a) it constitutes the contract document, which includes the conditions of transport, with characteristics typical of adhesion contracts (contractual title); b) it is a document of proof of the delivery of the cargo on board the ship and the condition and quantity of the goods received by the carrier (probative title); and c) it is a security title or, more exactly, a representative title of the cargo, which incorporates the right to claim the cargo at destination and dispose of it during the trip, with the double scope of title of credit against the carrier and title of tradition whose delivery replaces that of the things it represents.

Fundamentally, due to this last function and nature, the issuance of the bill of lading (or similar document) finds its main justification when it comes to goods that have to change holders (the shipper and the recipient are different people) and that are called upon to circulate, or their circulation is foreseen.

Article 1.b of the Convention uses the indeterminate formula 'or any similar document' in order to comprehend any other document that, although not expressing that it is a bill of lading in the technical legal sense, performs equivalent functions (thus, the doctrine cites received for shipment bills, straight or through bills, and delivery orders issued by the carrier). The 'similar' document will be one that, in short, fulfills the same functions as the bill of lading, especially that of a document of title.

However, when there is no need for a representative and negotiable title that covers the goods and incorporates the right to dispose of them or, in general, when the circumstances of the transport do not require said title in view of the functions that it is called to perform, it will be normal for it to be replaced by another type of document, such as a sea waybill.

In such cases, the doctrine has considered the Brussels Convention (the Hague-Visby Rules) inapplicable because the sea waybill is not a document 'similar' to the bill of lading for the purposes of applying the Convention, since, although a document proving the transport contract and a receipt proving the reception of the goods by the carrier, it is not, however, a document of title. It is a non-negotiable document, it lacks the representative function, and therefore it is not transferable. And the exercise of the right to claim the delivery of the merchandise by the recipient, unlike what happens in the case of the bill of lading, does not require the counter-delivery of the document to the carrier; it is enough that the recipient is the person designated in the document itself: that is, the merchandise will be delivered to the person named in the document, without the need to present any title.

This is how the Supreme Court has determined the issue, precisely in the judgment of 3 March 1997 invoked by the plaintiff, pointing out that the maritime consignment note or waybill 'lacks the properties that define documents of title and are issued when they do not provide for the transfer of the goods and, consequently, they are not intended for circulation', after noting that 'these documents prove the carrier's obligation to the recipient, but the recipient does not need to present the document to claim delivery of the goods, but what is sufficient is that it is identified as the subject initially designated as the beneficiary of the right to delivery'. ...

In the case at hand, the sea waybill itself provides that the claim, if made by the carrier, may be made in the place where the merchant has its place of business. Consequently, it is appropriate to apply the Spanish regulations.

The current regulation of maritime waybills, contained in arts 268-271 of Law 14/2014, of 24 July, on Maritime Navigation (the LNM), includes the characterisation of these instruments, in a manner consistent with the jurisprudence mentioned, by establishing:

• Non-negotiable transport documents and, in particular, sea waybills issued for maritime transport are not documents of title.
• The transfer of these documents does not provide to the transferee a better right over the merchandise than that which corresponded to the transferor (art 268 LNM).
• The sea waybill must contain the information established for the bill of lading, as well as an express indication of its non-negotiable nature (art 269 LNM).
• The rules on the probative force of the bill of lading and on the possibility of inserting reservations will be applied to sea waybills (art 270 LNM).
• When the carrier delivers a sea waybill with designation of the recipient, the latter will have the right to delivery of the goods at destination without the need to present the document (art 271 LNM).

Secondly, and in relation to the position assumed by the defendant in the transport contract, it is appropriate to recall the doctrine of the Supreme Court in this regard. Thus, in its judgment of 13 September 2013, it stated the following:

As stated, JJ Forwarder SL assumed, on behalf of Importaciones Vidal SL, the function of organiser and co-ordinator of international transport of goods, taking charge not only of receiving the cargo as a consignee and of carrying out the complementary administrative, tax, customs and logistics procedures, but also of contracting maritime transport on its own behalf. It is established in art 126.1.a of Law 16/1987, that, when hiring transport, the freight forwarder becomes the carrier in relation to the defendant - judgment 348/2011, of 26 May [see CMI521], not only for the purposes of their obligations and responsibilities, but also in terms of their rights - as also provided in art 379 of the Commercial Code. For this reason, the Court of Appeal correctly applied art 951 to the action claiming freight and expenses inherent to the transport organised by the plaintiff, who, by virtue of the foregoing, was not a commission agent.

In this case, it is clear that Transnatur's status as shipper results from the sea waybill, which, as has been said, is evidence of the maritime transport contract. And this is so, regardless of whether the company acted as freight forwarder or commission agent, since, in any case, it acted on its own behalf, thereby assuming the rights and obligations arising from the transport contract. Among the obligations it assumed are the payment to the carrier of the freight and of damages caused by the delay in the removal of the cargo, which was published on the Hapag-Lloyd website, to which reference was made in the sea waybill.

In this context, the Ex Works clause used in the sales agreement prior to transportation, and by virtue of which the only obligation of the seller is to make the merchandise subject to the contract available to the buyer in the factory (the loading of the cargo is the responsibility of the buyer, as well as the expenses and the risk of transporting the same, from the factory to the place of destination) represents no obstacle to the shipper's obligations. As has been pointed out, the legal position of the shipper derives from the transport contract, and the issues related to this contract must be resolved in accordance with it.

As far as the Freight Collect clause is concerned, this itself is part of the transport contract, but does not represent any impediment to the obligations required of the shipper. In effect, this clause inserted in the contract means that the cargo traveled 'freight due' so, naturally, the freight should have been paid by the consignee/receiver of the cargo. However, when the latter does not perform, the payment obligation falls on the shipper, especially when the sea waybill does not have the status of a traditional document of title, nor is it representative of the goods.

For its part, the current art 235 LNM establishes:

1. The charterer shall be bound to pay the freight under the conditions agreed.

2. Notwithstanding this, it may be agreed that the freight be payable by the recipient of the cargo, this being recorded on the bill of lading or consignment note. In this case, the recipient shall be bound to pay the freight if it accepts or withdraws the merchandise at destination. Should the consignee refuse or not withdraw the goods, it shall pay the freight to the party that contracted the carriage. The latter shall also pay the part of the fee that the carrier has not received from the consignee in spite of having exercised the withholding or deposit rights it is granted pursuant to Article 237.

And, arts 241.2 LNM states the following:

The charterer shall pay the amount set in the contract for the delay time arising. If its amount has not been agreed, a sum shall be paid equal to that which may have been set according to the business practice for ships of similar characteristics, with a similar cargo and voyage.

Transnatur further argued that, in accordance with the provisions of art 3.6 of the Hague-Visby Rules, which provides for a one-year term to bring actions related to bills of lading, Hapag-Lloyd's claim had expired. Alternatively, in case the Convention was not applicable, the claim had expired by application of the Law of 22 December 1949, on unification of rules in bills of lading in merchant shipping (in force until 25 September 2014 and repealed by the current LNM), which also provided one year for the exercise of the actions derived from the bill of lading; or, finally, the claim had prescribed in accordance with art 951 of the Commercial Code (CCom).

In this regard, it should be noted that, on the one hand, as has been pointed out, the Hague-Visby Rules do not apply to sea waybills; and, on the other hand, art 22 of the 1949 Law is applicable to actions directed against the carrier, but not to those directed against the shipper, to which art 951 Ccom applies (STS 28/10/2002).

It must be analysed, therefore, if, according to art 951 CCom, prescription of Hapag-Lloyd's claim has occurred. The first para of this article provides that 'actions related to the collection of ... freight ... will prescribe six months after the delivery of the items'.

From the evidence taken in this proceeding, it is clear that Hapag-Lloyd informed Transnatur of the situation in which the goods were found and the subsequent declaration of abandonment (which occurred on 30 April 2010) and destruction by the authorities. Likewise, Transnatur communicated to Hapag-Lloyd that the consignee designated in the sea waybill, and the buyer of the transported cargo, was not going to receive it. Hapag-Lloyd was waiting for Transnatur to provide it with the name of another buyer who could receive it and pay the freight. Due to the foregoing, it is not appropriate to find that the action of claiming the payment of freight and transportation delay expenses had prescribed.