This was a claim brought by the plaintiff against the defendant for EUR 28,165.94 for damage caused to 2,240 boxes of Hass avocados during carriage by sea from Mexico City to Algeciras. The defendant subcontracted carriage of the goods to Mediterranean Shipping Co (MSC). MSC provided the container, which was delivered to the shipper, Coral. Once Coral had stuffed the container, it was transported to the port of Altamira (Mexico), where it was loaded onto the Maersk Kingston, operated by MSC, on 28 November 2021. The container was discharged at the destination port, Algeciras, on 21 December 2021. Routine inspection operations were carried out on arrival. No anomaly was observed in the container's refrigeration equipment. The container remained in the port for another week on the instructions of the plaintiff. On unpacking the container, the avocados were found to be in an advanced state of maturation that rendered them unusable.

According to the plaintiff, the cargo arrived damaged due to the poor functioning of the container's refrigeration system. The defendant argued that by virtue of the contract of carriage, which stipulated a full container load (FCL), it was the shipper who assumed responsibility for the delivery of the sealed cargo, which the carrier had not handled. The cargo arrived at the port of destination on 21 December and it was the plaintiff who requested that it remain there until 28 December. The damage was not due to a cause attributable to the defendant since the container's refrigeration equipment worked correctly, but rather due to the fault of the shipper, since the avocados were already in an advanced state of ripening at the beginning of the voyage.

Held: The plaintiff's claim is dismissed.

This case involves an international maritime transport relationship, under a bill of lading regime, regulated by what are known as the Hague-Visby Rules, incorporated into Ch II of Title IV of the Law on Maritime Navigation (the LNM). Articles 3 and 4 of the Rules are based on the presumption that the fault in causing the damage has been that of the carrier. However, this is a rebuttable legal presumption. The burden of proof rests on the carrier. In these types of cases, in which we try to determine what the possible cause of the incident could have been, we move between theories and hypotheses, having to opt for the one that is most plausible in light of the concurrent circumstances.

Here, we are dealing with a consignment of avocados. As highlighted by the defendant's two experts, whose evidence was credible and convincing, it is a climacteric fruit that undergoes a ripening process, during which it breathes, ie, it inhales oxygen (O₂) and expels carbon dioxide (CO₂). Logically, when the fruit is still green after being picked, this O₂ inhalation is less than when it is more ripe. Therefore, for the fruit to last the three weeks of the sea journey, it must always be green, and it is based on these conditions that the O₂ and CO₂ levels of the container are established at origin. Specifically, the refrigeration equipment, as explained by the defendant's two experts, works in the following way: the container is filled with ambient air and closed. In principle, this air is sufficient for the fruit, if it is green, to have enough O₂ to be able to breathe, but the maturation process is slowed down. If the refrigeration equipment detects, as it did here, that the CO₂ levels exceed the expected maximum, a valve is opened to bring in new air from the outside to lower those levels.

The problem is that, in this case, the CO₂ levels remained high throughout the voyage, which caused the valve to constantly open, allowing air to enter, so the fruit continued to ripen. The key question is why such high levels of CO₂ were produced. The only two possible answers can be because the refrigeration equipment did not work, as the plaintiff alleges, or because the fruit had already begun its ripening process at origin, as the defendant maintains.

The inspection carried out on the container at destination confirmed that the refrigeration equipment did not present any anomaly or incident. On the contrary, everything indicates that it worked correctly, as confirmed by MSC itself, who also indicated that this container had subsequently been used in other transport without incident. Therefore, if it was not a problem with the container, the most plausible explanation is the one offered by the defendant's two experts, ie, that the fruit, when loaded at origin, was not green, but had already begun its ripening process. The plaintiff has not provided any evidence of when the avocados were harvested in order to know how many days had passed from collection to transportation to refute that argument.

This conclusion is the same as that reached in Ruling 165/2019 of 29 March 2019, where the Provincial Court of Madrid (Section 28) [ECLI:ES: APM:2019:4772], in a case similar to this, exonerated the carrier from liability because the damage was attributable to the shipper:

It should be remembered that, according to the bill of lading, the container transported by AGUNSA EUROPA SA was transported under an 'FCL/FCL' transport clause. Regarding these type of clauses, already examined by the SAP of Madrid, Sec 28 (Commercial), No 228/2016, of 10 June 2016, the FCL, 'Container Shipper's Load & Count' is a standard transport term, the inclusion of which in the bill of lading determines that the container is considered to be, and is transported as, a cargo unit, a single package, which has already been loaded and stowed by the shipper itself, who delivers it closed and sealed to the carrier. As indicated by the SAP of Madrid, Sec 28 (Commercial), No 72/2012, of 5 March 2012, FJ 5º, 'The 1968 [Visby] Protocol introduced a specific provision in this regard (article 4.5.c), so the containers themselves can be the object of transport, so that in this case, in which the plaintiff indicates that the object of transport is a series of containers, the container must be understood as the package or unit.' This implies that the transport operator only checks the external state of the container and its seal upon delivery, and that the shipper has the duties of loading and stowing the goods inside the container in an adequate manner.

For all of the above reasons, the defendant has proven that the fault or responsibility for the damage is not attributable to the carrier, but rather to negligence on the part of the shipper itself.