This was an appeal against the judgment of the Commercial Court No 7 of Barcelona, dated 9 November 2021, which ordered the appellant, Manipulaciones Portuarias Grupajes y Transitos SAU (MPG), to pay EUR 14,723.61 to the respondent, Zurich Insurance PLC (ZI).

Coopecarn, which was insured by ZI, contracted the services of MPG for the organisation of carriage of cargo from its facilities in Gerona to its client in Chile. MPG subcontracted the land carriage from Gerona to the Port of Barcelona to Trans Nogasa SL, and subcontracted the maritime transport from Barcelona to Chile to Hapag-Lloyd, with both acting as actual carriers.

The cargo was stuffed into a 20-foot reefer container and required a temperature of -18º C for proper conservation. During the maritime transport, the refrigerator alarm of container No HLXU-372719/2 reported a rise in temperature. As a result of this failure, the cargo was unloaded at the Port of Valencia and transferred to another container on 14 August 2018. An inspection was carried out on 10 September 2018 at Valencia, with 563 boxes declared a total loss due to temperature fluctuation. Coopecarn destroyed this cargo. ZI compensated Coopecarn under its policy and sought recourse against MPG.

MPG acknowledged the facts alleged by ZI, and admitted that the damage to the cargo occurred during the maritime transport phase. However, MPG alleged the expiration (caducidad) of the action due to the passage of a period of one year from the date on which the cargo should have been delivered (12 September 2018) in accordance with the provisions of art 277 of the Law on Maritime Navigation (the LNM) and the Hague-Visby Rules. MPG alleged that ZI lacked legal standing to bring a recourse action. The identity of the insured was also in question. Finally, given that the cargo had been sold and shipped under CIF terms, once the cargo passed the rail of the transporting ship, the risk and ownership of the cargo was transferred from the seller to the buyer, Don Hugo SA in Chile, the latter being the only party who could claim for damages.

Held: Appeal allowed.

Article 277.1 of the LNM provides in terms of liability that '[t]he carrier is liable for all damage or loss of goods, as well as delay in their delivery, caused while they are under its custody, in accordance with the provisions set forth in this section, which shall imperatively apply to all maritime transport contracts'. Article 277.2 provides that carrier liability in contracts for the maritime transport of goods, whether national or international, under the bill of lading regime, shall be governed by the Hague Rules, the Protocols that modify the Hague Rules to which Spain is a State party, and the provisions of the LNM.

Article 3.2 of the Hague-Visby Rules and SDR Protocol attributes to the carrier the main obligation to preserve, guard, and transport the cargo. As this Court indicated in its judgment of 15 December 2017 (ECLI:ES:APB:2017:12302) one must start from the one-year period established in art 3.6 of the Brussels Convention which establishes that:

the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.

In Spanish law, the issue has arisen as to whether the effect of this period amounts to expiration (caducidad) or prescription (prescripción). The academic doctrine is not unanimous in qualifying this term, even though the majority view defends the notion of extinction of the action. From the outset, the Supreme Court has interpreted the term as an expiration, which can be assessed at the request of a party or ex officio, a qualification which entails that its calculation cannot be interrupted, and that art 1973 of the Civil Code is not applicable to it (judgments 990/2008 of 7 November (CMI620), 348/2011 of 26 May (CMI521), and 437/2016 of 29 June (CMI520), among the more recent).

Starting from this period of one year from the date of delivery of the goods or, in the event that the delivery has not occurred, from when the cargo should have been consigned, this Court must analyse whether the action has been filed within the term or, conversely, has expired, since the period cannot be interrupted unless the parties agree on an extension.

In this case, the cargo should have been delivered on 12 September 2018, and the lawsuit was filed on 14 October 2019, so the period of one year has elapsed. The respondent invokes the existence of an extrajudicial claim made on 25 July 2019, but this claim does not interrupt the term. In the relevant correspondence, ZI sought an extension of the expiration period. A unilateral request for an extension of the expiration period is insufficient to consider that there is a mutual agreement of the parties to extend it. ZI should have filed the lawsuit before 12 September 2019. The appeal is upheld in this regard, the action must be declared expired, and therefore the claim is dismissed.