Compañía Española de Lalaminacion SL sold 2,055 mt of steel bars to Celsa Manufactoring UK Ltd for EUR 2,055,997. The cargo was transported from Barcelona, Spain, to Cardiff, Wales, on the MS Carrier, and Intramediterráneo SA (IM) acted as the carrier. When the cargo was unloaded on 10 May 2010, it was in poor condition. The consignee had Wendt & Co prepare a survey report on the damage, which was issued on 12 May 2010. The cargo damage was insured by HDI Hannover Internacional (Spain) Seguros y Reaseguros SA (Hannover), which compensated its insured in the amount of EUR 50,000.

On 10 May 2011, Hannover filed an indemnity claim against IM. At first instance, the Commercial Court dismissed the claim, holding that the action had prescribed. The Court found that the transport had been carried out under a charter contract, outside the ambit of the Hague-Visby Rules. As a consequence, art 952.2 of the Commercial Code (CCom) applied, which required the consignee to protest damage within the legal period specified, ie the same day of delivery or within 24 hours of delivery.

The appellate Court upheld Hannover's appeal. The appellate Court reasoned that art 952.2 CCom should be interpreted in accordance with relevant international regulations, specifically the Hague-Visby Rules, which do not require prior protest to bring an action. In addition, the appellate Court found that the transport contract was concluded under the bill of lading regime, and was subject to the Hague-Visby Rules. Pursuant to art 3.6 of the Hague-Visby Rules, the action for loss or damage to the goods had to be brought within a year from its delivery or, where appropriate, from when it should have been delivered, without having to provide a prior complaint as a prerequisite.

IM appealed to the Supreme Court, arguing that the appellate Court had infringed art 952.2 CCom and previous Supreme Court jurisprudence interpreting this provision, and had confused the regime of chartering a ship, to which art 952.2 CCom applies; and that of carriage of goods by sea under a bill of lading, to which the Hague-Visby Rules apply. The Law of International Maritime Transport of 22 December 1949 (LTM), which incorporates the Hague Rules regime, expressly excludes its application to a charterparty. For this reason, art 952.2 CCom applies, which cannot be interpreted in such a way that what is expressly regulated ceases to apply.

Held: Appeal dismissed.

It should be noted that, due to the dates on which the transport was arranged and the damage was caused (April-May 2010), the current Maritime Navigation Law (the LNM), which unifies the legal regulation of the maritime transport of goods, and repeals both art 952 CCom and the LTM, was not yet in force. The LNM entered into force on 25 September 2014. The LNM unifies the regime of protests (art 285) and prescription of actions arising from charterparties and carriage of goods under bills of lading (art 286). These actions all prescribe after a year (art 286.1 LNM). In the case of actions for compensation of losses, breakdowns or delays suffered by the goods, the period will be counted from the delivery of these to the recipient, or from the day on which they should have been delivered (art 286.2 LNM). When the recipient has failed to give written notice to the carrier or its agent of loss or damage suffered by the goods, or has done so after the deadline, it will be presumed, unless proven otherwise, that the goods have been delivered as described in the bill of lading (art 285.3 LNM).

Since the LNM does not apply in this case, the claim must be settled in accordance with the previous regulations. Under these regulations, it was still possible to distinguish between, on the one hand, international maritime transport of goods under the bill of lading regime, where the Hague-Visby Rules governed, and specifically the LTM; and, on the other hand, transport arranged through a charter contract, in which case the regime was integrated into the general regulations of the CCom.

Pursuant to art 22 LTM, a claim for cargo damage had to be brought 'within the year following the delivery of the goods or the date on which they should have been delivered'. Prior protest, made within the legal term, did not constitute a procedural requirement, so its omission or late presentation did not entail the automatic loss of the right to claim cargo damage. The absence of timely protest only generated a presumption that the goods had been delivered by the carrier in the manner stated in the bill of lading, and this presumption admitted evidence to the contrary, which proved that the cargo was delivered in poor condition. In the cases to which art 952.2 CCom applied, this provision also established a one-year limitation period for the exercise of 'actions for cargo delivery in land or sea transport, or for compensation for delays and damages suffered by transported goods'. The term was computed from the day of delivery of the cargo at the place of destination, or from the day on which it should have been delivered according to the terms and conditions of its transport. As can be seen, the limitation period and its computation was thus common to both art 22 LTM and art 952.2 CCom, and coincides with the current limitation period in art 286.2 LNM.

However, the second para of art 952.2 CCom expressly provided that: 'actions for damages or faults may not be brought if at the time of delivery of the respective shipments, or within the following twenty-four hours, in the case of damage that did not appear on the outside the packages received, the corresponding protests or reservations were not formalised'. It is necessary to note the contrast in this rule in art 952.2 CCom, which, when the CCom was enacted in 1885, applied to all types of mercantile transport of goods then known, by land and sea, regardless of whether it was national or international, and was promulgated prior to the limitation period that was approved in the international agreements that regulate the international transport of maritime goods under the bill of lading system and the international transport of goods by road. Both in the LTM, which incorporated the Hague Rules regime, and in the CMR, relating to the contract for the international carriage of goods by road, of 19 May 1956 (BOE No 109, of 7 May 1974), the limitation period for cargo damage is one year, and the lack of a timely protest does not prevent the bringing of an action for cargo damage. This legislative evolution, which was aimed at the unification of the protest or reservation regime in relation to the exercise of actions for liability for loss of or damage to cargo, justifies its application in the present case, where damage to the cargo occurred before the LNM had been approved, and allows the Court to depart from the interpretation that previously prevailed regarding the scope of the lack of protest provided for in art 952.2 CCom.

Although it is true that there is jurisprudence which interpreted the second para of art 952.2 CCom in the sense of requiring prior protest within the legal term of 24 hours, in order to be able to bring an action, it is appropriate to change this doctrine and to interpret the provision in accordance with the social reality of the time in which it is to be applied (art 3.1 of the Civil Code), marked by the aforementioned normative evolution that tends to unify the system of denunciation or protest of loss or damage to goods, both in maritime and land transport. It must be understood that, when the damage occurred to the goods being transported, the protest already had a unequivocal meaning for all kinds of land transport (the Land Transport Law had already been approved) and maritime transport (the Hague-Visby Rules). The meaning of the protest provided for in the second paragraph of art. 952.2 CCom must conform to this common ratio, and therefore its absence or its completion outside the legal term does not prevent the exercise of the action provided the one-year limitation period is met, as in the present case.

The reasoning above means that it is not necessary to resolve whether art 952.2 CCom in fact applies to this case, and specifically the parties' dispute over the characterisation of the maritime transport contract that was entered into. Even if it were admitted that it was a charterparty under which a bill of lading had been issued which was not governed by the Hague-Visby Rules, because it had not been transferred to a third party, on the Court's current interpretation of art 952.2 CCom, the absence of protest or its realisation outside the legal period of 24 hours would not have prevented the commencement of a cargo damage claim.

Although the appeal has been dismissed, the change in jurisprudence shows the existence of serious legal doubts regarding the interpretation of art 952.2 CCom, which justifies the non-imposition of costs.