This was an extraordinary appeal for procedural infraction and cassation filed by the appellant, Intramediterráneo SA, against a judgment of the Provincial Court of Barcelona in favour of the respondent, Ausa Nuevas Tecnologías SL.

On 28 January 2013, the respondent purchased 1,519 steel bars in Russia, on CIF Vilanova i la Geltrú terms, with a net weight of 1,588 mt, and for a price of EUR 1,024,953.55. Maritime transport was arranged by the seller from Novorossiysk, Russia, to Vilanova i la Geltrú, Spain. The cargo was carried on the Dana 1. Since the sale was made on CIF terms, the buyer was not a party to the transport contract. Instead, the appellant, an agent of the carrier, was named as the consignee in the bill of lading. During unloading operations, puddles of water were observed at the bottom of the two holds. It turned out that most of the steel bars were damaged by salt water, since a silver nitrate test was positive. No commercial use could be made of the material damaged by salt water. As a result, the respondent sold it for scrap.

According to the appellant, the following clause was agreed in the transport contract:

General Paramount Clause:

a) The Hague Rules contained in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading signed at Brussels on 25 August 1924 as enacted in the country of shipment shall apply to this bill of lading. When the Hague Rules are not enacted in the country of shipment, the corresponding legislation of the country of destination shall apply, but with respect to shipments to which such enactments are mandatory, the terms of said Convention shall apply.

b) Trades where the Hague-Visby Rules apply: in operations where the Protocol signed in Brussels on 23 February 1968 - The Hague-Visby Rules - has been added to the 1924 Brussels International Convention, and apply compulsorily, the provisions of the respective legislation shall apply to this bill of lading.

c) The Carrier shall in no case be responsible for loss of or damage to cargo arising prior to loading, after discharging, or while the cargo is in the charge of another carrier, or with respect to deck cargo and live animals.

The respondent filed a lawsuit against the appellant for EUR 699,472.01, interest, and costs. The appellant argued, among other things, that the Maritime Transport Law 1949 (the LTM) and the Commercial Code (CCom) were not applicable to this case. The bill of lading had been issued in Russia, which had ratified the 1968 and 1979 Protocols, and the Hague-Visby Rules were thus applicable. According to the Hague-Visby Rules, there is no assimilation of responsibility between the shipping company and the consignee. Regarding the claimed damages, the appellant denied any responsibility, attributing them to the state of atmospheric oxidation in which the cargo was found when it was loaded.

The judgment of first instance upheld the appellant's arguments and dismissed the respondent’s claim. It held that the applicable law was the Brussels Convention of 1924, modified by the Protocols of 1968 and 1979, which excluded the application of Spanish domestic law in the form of the LTM and the CCom, and thus the assimilation of the consignee agent with the responsibility of the shipping company. The Provincial Court upheld the respondent's appeal. The Court considered the paramount clause inapplicable because there was no evidence that it was included in the bill of lading. Therefore, in accordance with international and national legislation, and the case law that assimilated the responsibility of the consignee to that of the carrier, it revoked the judgment of first instance and upheld the claim. The appellant appealed to the Supreme Court.

Held: Appeal dismissed.

The appeal, among other things, denounces the Provincial Court’s incorrect application of the LTM and the CCom, when according to the applicable law agreement, only the application of the Brussels Convention was appropriate. The appellant contends that in accordance with art 3 of EU Regulation 583/2008 on the law applicable to contractual obligations (the Rome I Regulation) and art 10.5 of the Civil Code (CC), the paramount clause incorporated in the bill of lading should have been applied, so that only the Brussels Convention and its Protocols would be applicable, but not internal Spanish legislation which assimilates the consignee's responsibility to that of the shipping company.

It is beyond doubt that due to both the international and national regulations cited, an applicable law clause (in this case, the paramount clause) may be valid and effective, pursuant to art 3 of the Rome I Regulation. The Provincial Court did not doubt the clause's validity, but rather did not consider it proven that the clause governed the international maritime transport contract that is the subject of litigation. In any case, the determinant according to art 25.1 of the aforementioned Rome I Regulation, is that there was no impediment to the application to the case of the Brussels Convention 1924 and its Protocols.

Within the scope of the Hague-Visby Rules, the paramount clause has become one more criterion for the spatial application of those same Rules, in co-existence with other criteria, such as the place of issuance of the bill of lading in a State Party, or the place of loading of the goods. In other words, the cited clause is one of the factors that makes it possible to apply the Hague-Visby Rules. And it has the effect that it prevents a foreign law outside such Rules from applying.

However, in this case the said effect of the paramount clause does not occur. Since the bill of lading was issued in Russia, and this State is a signatory to the Brussels Convention and its Protocols of 1968 and 1979, the Hague-Visby Rules would have applied equally, regardless of the paramount clause.

Based on the foregoing, the applicability in Spain of the Brussels Convention and its 1968 and 1979 Protocols (the Hague-Visby Rules) does not exclude the application of the LTM or the CCom in this case. As stated in Judgment 1316/2006, of 20 December [Expesa Fish SA v Naviera del Odiel de Contenedores SA STS 8590/2006 (CMI702)]:

The Law of 22 December 1949, on maritime transport of goods under bills of lading - hereinafter the LTM - responded to the purpose of introducing in Spain the Brussels Convention of 25 August 1924 on the unification of certain rules regarding bill of lading, which had as precedents the Hague Rules of 1921 and the Conferences of London and Buenos Aires of 1922, and was ratified by 16 countries, including Spain on 2 June 1930 (Gazette of July 31). The LTM, which is accused of incorrectly translating the Convention, of having defects in legislative technique, and even of not fully complying with the Convention by restricting its content in certain aspects, entered into force six months after its publication, and has since then constituted the normative framework governing the area, and has been applied accordingly, repeatedly and peacefully, by the jurisprudential doctrine. The Brussels Convention was modified by the Protocol of 23 February 1968 - the Visby Rules - and the Protocol of 21 February 1979, ratified by Spain on 16 November 1991, both texts being published in BOE no 36, of 11 February 1984, from which moment they became part of our internal legal system in accordance with arts 96.2 CE and 1.5 of the CC.

The reference in the Protocol to the 'Convention' as meaning the Brussels Convention of 1924 created a controversy about whether the incorporation of the new international standardising regulations meant the full application of the Brussels Convention (with the modifications of 1968 and 1979), and, consequently, since the 1924 Convention does not fully coincide with the LTM, the practical repeal of the latter, or at least in cases in which the 1968 and 1979 Protocols (The Hague-Visby Rules) were applicable. Leaving aside the problems that arose in relation to the impact on domestic legal systems of the ratification of the Brussels Convention 1924 - in respect of which it should be noted that in Spain there were no current regulations - and noting that there is no unitary doctrinal position regarding the problem of the repeal of the LTM, the truth is that the jurisprudence of this Chamber regarding maritime transport in which the Hague-Visby Rules were applicable has been maintained (without fissures until some recent isolated judgments that implicitly seem to maintain a different idea): the validity of the LTM is not affected by the Protocols of 1968 and 1979. In this regard, see the Judgments of 7 April 7 and 17 July 1995, 18 June 1996, 28 July 2000, 19 April 2001, 21 July and 18 November 2004 and 30 March 2006, among others. Based on the foregoing, the allegation that the application of the LTM is excluded is not accepted because the case being prosecuted is subject to the Hague-Visby Rules by virtue of the 'Paramount' clause, contained in the bill of lading, in relation to art 10 of the 1968 Protocol. But, in addition, it must be said that there is no incompatibility with arts 2 and 3 of the LTM, so it is not possible to think of a tacit partial repeal. Apart from anything, art 3 of the Protocol of 1968, in the wording that introduces art 4 bis, refers in para 2 to the action filed against a person who is the servant or agent of the carrier - but who was not a contractor on its behalf - in the sense that 'such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under these Rules'.

Likewise, the issue related to the responsibility of the consignee, in an extensive application of art 586 of the CCom, was also resolved in the same judgment, declaring:

[T]he application of the Hague-Visby Rules does not exclude the application of the Commercial Code (S 18 June 1996) because it does not suppose a complete system, and, in addition, the doctrine of this Chamber has highlighted the coincidence of the substantive part of the second para of art 586 of the CCom with art 3 of the LTM.

Once this conclusion has been reached, nothing more needs to be resolved. As a consequence, the appeal must be dismissed.