Hellmann Worldwide Logistics SA (Hellmann) sued Global Container Agency SA (Global) for EUR 141,502.23 for delays in transport between Shanghai, China, and Madrid, Spain. The claim was based on an order received by Hellmann from Asian Pioneer España SL (Asian Pioneer) to organise carriage of a series of containers between the two cities. For the performance of the carriage, Hellmann contracted with Global, who invoiced and collected from Hellmann the price of the freight corresponding to the maritime transport of the cargo from Shanghai to the port of Valencia.

Asian Pioneer subsequently sued Hellmann for delays in the maritime transport, and was awarded EUR 118,905.88. Hellmann sought to recover this amount from Global. Global filed a plea for lack of international jurisdiction, on the basis that the bills of lading under which the carriage was carried out contained an express jurisdiction clause in favour of the courts of Trieste (Italy). This plea was dismissed. Global then argued that its involvement in the transport was that of an agent of the carrier. It did not contract with Hellmann, and billing was carried out on behalf of the actual carrier, which was Lloyd Triestino di Navigacione SpA (Lloyd). For this reason, there were no prior communications between Hellmann and Global, nor any commitment assuming an obligation to deliver goods on a certain date.

The Court of first instance dismissed Hellmann's claim, as it was not proven that Hellmann contracted with Global for the performance of the transport, since it was an agent of the carrier. The Court added that Global did not assume any obligation to deliver on time, or that there would be no transhipment of the cargo.

Hellmann appealed to the Provincial Court, arguing that Global must be considered as a carrier, given that it issued and collected the invoices for the transportation of the containers as freight. It added that a carrier's agent is also responsible if it contracts the transport on his own behalf, without saying that it does so on behalf of a third party, as was the case here.

Held: Appeal dismissed.

The regulations applicable to the maritime transport of goods are contained in two groups of regulations: on the one hand, the Commercial Code, and, on the other, those that regulate international maritime transport, which is governed by the Law of 22 December 1949 on maritime transport of goods under bill of lading (the LTM), which incorporates the norms of the Hague-Visby Rules.

In this case we are dealing with an international maritime transport of goods under the bill of lading system carried out between Shanghai and Valencia. Based on the bills of lading, Lloyd assumed the obligation of transporting the cargo as the carrier. Global's involvement was as representative of the carrier. Global did not assume the obligation to transport, so it cannot be considered a carrier, either contractual or effective. The fact that Global issued the invoices derived from the transport does not make it a carrier. Hellmann clearly knew that Global was acting as a representative of Lloyd.

Next, we must examine liability caused by delay. Neither the Brussels Convention nor the LMT contains any provisions regarding delay. Consequently, there are two possibilities: submit the delay to the general liability regime in domestic law, or consider the uniform Convention regime applicable to cases of delay. The first solution is unsatisfactory, as it opens the possibility of introducing exemption clauses that empty the content of responsibility, or elude the limits of responsibility when they are not provided for in the internal legal system, as is the case in Spain. For this reason, the majority doctrine supports the application of the uniform Convention regime to cases of delay, understanding that art 4 of the Hague-Visby Rules does not refer only to physical loss or damage, but also includes all kinds of damages, including economic ones, given that its provisions use the expression 'any loss or damage'. The same expression is used in art 4.5.a, relative to compensation, which introduces the 1968 Protocol and, despite the fact that it links the wording with the goods, it introduces as an addition 'or in connection with the goods', which allows its application to all kinds of damage. It has been argued that the exclusion of delays from the uniform regime would be contrary to art 3.8 of the Convention and arts 8.1, 9 and 22 LTM, provisions that refer to all types of damage, not only physical loss and damage. Similarly, the deviation regime provided for in art 4.4 of the Brussels Convention implies coverage of delay.

While the Explanatory Note (5: Liability for Delay) of the UNCITRAL Secretariat in relation to the Hamburg Rules highlights that the Hague Rules do not apply to the carrier's liability for delays in delivery since, until recent times, sea voyages were exposed to innumerable uncontrollable risks that frequently caused delays and deviations, the literal tenor of the provisions cited from the LTM allows the Court to maintain that it has been the will of the Spanish legislator to extend the application of the uniform regime to all kinds of damages that derive from the partial breach of the obligations derived from international maritime transport of goods. Both the Hamburg Rules and the Rotterdam Rules expressly contemplate carrier liability for delay.

In this case, the object of transport, as can be deduced from the claim itself and the bills of lading, are a series of containers. The Hague-Visby Rules introduced a specific provision in this regard (art 4.5.c), so that the containers themselves can be the object of transport, so that in this case, the container must be understood as a package or unit.

Once the legal regime applicable to delay has been established, it must be noted that no deadline was set for the execution of the transport in this case, nor was there a delivery date. In such a case, the criterion of reasonableness must be followed, evaluating the importance of the delay based on the characteristics of the transport, the nature of the goods, contractual provisions or instructions given and, in general, the practice of international trade related to the carriage in question. By contrast, the Hamburg Rules refer specifically to the carrier's liability for delay in art 5.2.

In this case, the containers were loaded on 28 June 2000 in Shanghai, and unloaded on 8 July in Singapore, where they were detained until 21 July, when they were transhipped. They arrived in Valencia on 13 August 2000. Even on the initial forecasts, the duration of the carriage would not be less than one month. Global did not commit to any deadline or date for delivery. The fact that Hellmann assumed certain commitments does not mean that their non-compliance is automatically transferred to the carrier which did not agree on a delivery date or specific conditions. The bills of lading themselves indicate transhipment in Singapore. In reality, what the claim criticises is the time that the cargo was detained in Singapore. Therefore, the Court cannot conclude that the total performance time represents an unreasonable period.