The plaintiff, Import Export Brands International 2013 SL, sued the defendant, Kuehne & Nagel SAU, for EUR 85,724.42, interest, and costs, for damage suffered to frozen lamb meat carried by the defendant in August 2020. The plaintiff was in the business of purchasing frozen lamb meat which complied with halal slaughterhouse requirements. The relevant meat originated from Ganados Artigot SL. The halal certificate was issued by Halal Consulting SL. The export certificate was issued by Comercial Sanchez Baldero SL, and the final destination was Kuwait. The consignee was Universal Al-Abrar Food Stuff & Meat Trading Co.

The interior of the reefer container had to be maintained at a temperature of -18^o C. The bill of lading indicated that the contracted mode of transport was CY/CY, ie 'container yard/container yard'. The ship's departure date was 18 July 2020, and the arrival date was 20 August 2020.

On 31 August 2020, the plaintiff was told by the defendant's agent in Kuwait that there had been a problem with the refrigeration of the container. On the same day, the consignee informed the plaintiff that, upon opening the container, the cargo in question was not frozen and was unsuitable for human consumption. It was later destroyed.

The defendant raised the defence that the plaintiff's action had expired, as more than a year had elapsed since the cargo arrived at the port until the claim was filed, on an application of the Brussels Convention of 1924 and its successive amendments (the Hague-Visby Rules). The defendant set 20 August 2020 as the initial calculation date of the ship's arrival at port, while the container was not picked up by the consignee until 2 September 2020. The defendant referred to the fact that the bill of lading stated that the goods were delivered under the CY/CY regime, which determines that the period of responsibility of the shipping company is from the time the goods are collected at the container terminal until delivery at the destination terminal.

In the alternative, the plaintiff argued that the package limitation under art 4.5.a of the Hague-Visby Rules (666.67 SDRs per package or 2 SDRs per kilogram of weight) should apply.

Held: The plaintiff's claim is dismissed.

The issue of expiration of the plaintiff's claim raised by the defendant under art 277.2 of the Maritime Navigation Law (the LNM), which refers to the Hague-Visby Rules, stipulates a period of one year from the time when the carrier delivers the goods. The parties do not dispute the applicable legal regulations, nor the period within which to bring the claim, but they do disagree regarding the moment when the carrier was released from its obligations.

The defendant considers that the date to be taken into account is the date of deposit of the container at its destination (20 August 2020), in accordance with which the plaintiff's action would have expired, since the lawsuit was filed on 28 August 2021. However, the plaintiff argues that the relevant date is 31 August, the date on which the consignee received the cargo, which would mean that the lawsuit was filed in time.

The transport was agreed on CY/CY (Container Yard/Container Yard) terms. This contractual term determines that the container is received closed by the carrier for transport, and the carrier must deliver the same closed container to the designated container yard at the destination.

A judgment of the 15th Section of the Provincial Court of Barcelona of 4 July 2003 (ECLI:ES:APB:2003:4444) refers to this type of clause and its scope:

Cargo is transported under the CONTAINER YARD TO CONTAINER YARD clause (from container terminal to container terminal) for international use in combined container transport, the meaning of which ... is that the shipping company does not physically handle the cargo inside the containers, since they are received at its facilities already loaded and closed by the client, the empty container being returned to the shipping company or carrier. So the clause imposes the obligation to transfer a container that is received by the shipping company already loaded, and to deliver the same container, with the unstuffing operations being the responsibility of the consignee or recipient of the merchandise, but it does not necessarily imply that the obligation to deliver, with the consequent extension of the duty of custody, culminates with the positioning of the container in the port of destination, especially when the bill of lading refers to delivery to a successive carrier.

Based on this judgment, in which the basic elements that make up the CY/CY incoterm are defined, it was up to the shipper/plaintiff to deliver the cargo in the container to the carrier, who determined that the temperature of the reefer container was within the scope of the shipper's obligations.

Regarding the moment when the carrier is released from its responsibilities, the judgment referred to makes it clear that the deposit of the container does not automatically release the carrier from liability - although it is true that the cited sentence refers to a successive transport in which the incident does not occur at the destination, but at one of the stops where the goods are transferred to the next carrier.

On the evidence, the expenses related to the delivery permit for the cargo were paid one day before the arrival of the vessel (on 19 August). As from 20 August, the consignee assumed storage expenses while the necessary customs and sanitary procedures were carried out so that the container could leave the port.

It would make sense to hold the defendant carrier responsible for damage to the cargo once the container has been deposited at the port of destination if a prolonged stay at the destination was an unknown event for the consignee or if the customs management, review of sanitary requirements, and effective departure from the port were managed by the carrier. In this case, the carrier assumed responsibility for the cargo with the delivery of the closed container and in optimal transport conditions, which were managed by the shipper, up until the deposit of the closed container at its destination.

The plaintiff's action is thus expired. It should have been filed no later than 20 August 2020 [sic: 2021].