On 3 October 2018, the plaintiff claimed EUR 27,394.61, plus interest and costs, from the defendant for the breach of an international maritime transport contract involving the carriage of a consignment of charcoal (60,370 kgs in three containers) from Fénix (Paraguay) to Barcelona (Spain). The cargo was carried on the ship Asunción. The transport was carried out under a bill of lading issued by the defendant, and naming Chaco Export SL (the seller of the cargo) as shipper 'on behalf of' the plaintiff as the consignee. The sale was on CIF Asunción (Paraguay) terms.

The plaintiff claimed that the cargo was discharged in poor condition. The two issues in dispute are: whether the defendant incurred liability in deciding to make a stopover in Italy, and whether it failed in its duty of care when, after inspection by the Italian authorities, it failed to 'recondition' the cargo in the same way in which it had originally been loaded (in bags suitable for sale) and in the same containers.

Held: The plaintiff's claim is dismissed.

Article 277.2 of the Law on Maritime Navigation (Law 14/2014) (the LNM) regulates the responsibility of the carrier, providing that:

Contracts for national or international carriage of goods by sea under the bill of lading regime and liability of the carrier shall be governed by the Convention for the Unification of Certain Rules of Law relating to Bills of Lading, done in Brussels, on 25th August 1924, the Protocols that amend it to which Spain is a party, and this Act.

In this case, it is not disputed that the Hague-Visby Rules apply. These Rules regulate the liability of the maritime carrier for loss of, or damage to, the goods on the basis of liability for fault, which revolves around the obligations that the carrier assumes in the contract of carriage and a list of causes of exoneration that must be invoked and proven, placing the burden of proof on the carrier (art 8 of the LNM and art 4.2 of the Hague-Visby Rules).

As indicated in the Judgment of the Provincial Court of Barcelona of 17 March 2016:

This general principle is completed with another that can be deduced from the rest of the Rules, according to which the responsibility of the carrier is presumed in case of damage or harm to the cargo during the time in which there is an obligation of custody (ordinarily, the time that elapses from loading on the ship to unloading at destination). This presumption admits evidence to the contrary: on the one hand, the carrier may be exonerated if it proves that it has used due diligence (art 8.2 LNM, art 4.1 of the Convention); and, on the other hand, to facilitate the exoneration of liability of the carrier, art 8 LNM (art 4.2 of the Convention) lists a series of cases in which, if they occur, the carrier is exempted from liability, although the burden of proof of the occurrence of any of these causes of exoneration lies on the carrier.

On the other side, art 3.4 of the Hague-Visby Rules establishes that the bill of lading will generate a presumption, unless proven otherwise, of the receipt by the carrier of the goods, in the manner in which they appear described in accordance with arts 3.3.a, b, and c, in particular regarding the apparent state and condition of the goods. To the same effect, see art 21 LNM.

Regarding the first disputed issue, a specific route was not agreed upon, as can be seen from the bill of lading (cl 9.1(a) on the reverse). Therefore, a direct route (non-stop) was not contracted for, but rather a regular line service, in which there is no commitment to follow a previously agreed route and, consequently, the defendant shipping company could follow the route that it considered appropriate, and cannot be held responsible for the fact that, when making a stopover in Italy, the Italian authorities decided to carry out an inspection of the vessel to rule out the transport of narcotics. The assertion that the defendant knew that it would be highly probable that, if it stopped in Italy, it would be inspected, is pure conjecture without any supporting evidence. On the contrary, it is proven that it was not a unilateral decision of the defendant, but that both the Customs and IIEE Department and the Civil Guard required the defendant to unload the cargo in Valencia, all within the framework of a special operation by Interpol, although it was finally decided that the inspection would not be carried out in Valencia, but rather in Italy (Gioia Tauro).

Consequently, the defendant complied with its duty, since it could not refuse the inspection. The defendant could also not avoid the consequence that, in carrying out the inspection, the bags of coal were opened, emptied, and disposed of, thus damaging the cargo transported. The damage caused as a result of this action by the Italian authorities in the course of the inspection ordered by the customs authorities in Italy in search of narcotics is not attributable to the defendant, as it falls outside its sphere of action and control.

Regarding the second disputed issue, it must be determined whether it was required of the defendant that, after the inspection, in which the sacks were opened, part of the cargo was crushed, and all of it was later placed in large bags, it should have proceeded to replace the coal into raffia sacks, just as they had been loaded. It was not agreed that the shipping company had the obligation to have packaging material on hand (in this case, raffia sacks) in the event that the cargo was subjected to inspection, and reconditioning or repackaging is not an obligation inherent to the functions of a shipping company, which are limited to its obligation to transport and deliver the cargo from a port of origin to the point of destination.

Consequently, the plaintiff's claim must be dismissed, since none of the damages and losses derived from the arrival in poor condition of the transported cargo that are claimed here are attributable to the defendant. In this case, there is no evidence that the defendant acted with a lack of diligence in compliance with its obligations. Moreover, cl 14.7 on the reverse of the bill of lading exempts the carrier from liability for any costs generated during an inspection (it provides that if by order of the authorities of any jurisdiction the cargo is retained and/or confiscated and/or a container must be opened to allow inspection, 'the carrier shall not be responsible for any loss or damage arising from the opening, unloading, inspection, reloading, retention, destruction, or delay of the cargo') and even establishes that the carrier will have the right to claim from the merchant the payment of any costs, losses, and expenses resulting from such actions, which has not happened here, as the defendant has not passed on or claimed any amount from the plaintiff for the inspection.