Ashland Chemical Hispania SL (Ashland) sold a quantity of resin to Caesarstone Quartz Surface Co in Israel. The resin was transported in 15 tank containers owned and provided by Contank SA (Contank). The containers were loaded in Benicarló with 25,000 kg of resin each, at a pressure of 95% of the capacity of each container. They were then transported overland to the Port of Barcelona. Contank contracted with Mediterranean Shipping Co SA (MSC) for the maritime transport leg from Barcelona to Haifa, Israel.

An IMO permit for the transport of dangerous goods was obtained from the Port Authority of Barcelona prior to the loading of the containers onto the Swaziland. At the time of loading in Barcelona, no protests or reservations were made, either about the state of the transported resin, or about the containers. The containers were unloaded at the Port of Gioia Tauro in Italy for transhipment. When they were reloaded onto the MSC Jenny, about 100 l of resin spilled onto the deck of the ship from one of the containers. The crew plugged the hole in the container and advised the Port Authority to activate the relevant emergency plan.

MSC alleged that the loss of the resin, and the costs for fire services, tugboats, work interruption, cleaning of the ship, and port fees in Haifa, caused damages of EUR 172,930, which it claimed from Contank and Ashland. Contank argued that the delivery of the containers was correct, that they were in perfect condition for transport, and that the events occurred well after the containers were delivered to MSC in good order. The Court of first instance dismissed MSC's claims against Contank and Ashland. MSC appealed to the Provincial Court.

Held: Appeal dismissed.

This case involves a multimodal transport system, which supposes the existence of a single contract between the carrier or multimodal transport operator and the shipper (seller) for the transfer of the cargo, without prejudice to the contracts that this operator may enter into with third parties which turn out to be the actual carriers in each phase of the transport; in this case, first a land, and later a maritime, phase. Contank subcontracted the services of MSC, the actual carrier for the maritime phase of transport, between Barcelona and Haifa. It is within the terms of this contract that the issue arises in this appeal. In this sub-transport linking Contank and MSC, the former assumes the status of shipper, and was the party which delivered the containers to the shipping company. The applicable jurisprudential doctrine (STS of 26 May 2011 (CMI521), and more recently STS of 28 September 2020 (CMI1406)) establishes a network liability system, applying the specific liability regime which corresponds to each phase of transport. In this case, the rules of the Law on Maritime Navigation (the LNM) apply, as MSC issued a consignment note, which excludes the application of the Hague-Visby Rules.

It is not disputed in this case that the cargo transported is classified as dangerous cargo, in accordance with the regulations that deal with this matter. The LNM refers to dangerous goods in two provisions: art 232, on 'shipment of dangerous goods'; and art 248.1.3, which refers to the 'mandatory statements in the bill of lading'. They are integrated with the Hague-Visby Rules (art 2 LNM) which refer generally to '[g]oods of an inflammable, explosive or dangerous nature to the shipment', and are supplemented by the International Maritime Dangerous Goods Code (IMDG Code). To ship dangerous goods, first 'a prior declaration of their nature to the carrier' is required (art 232.1 LNM); secondly, the consent of the carrier; and, finally, the goods must be marked and labelled by the shipper in accordance with the regulations in force for each class of these goods (art 232.1 LNM). All these requirements were met in this case.

The responsibility of the shipper will arise when 'dangerous goods are shipped in violation of the provisions of the previous section', where it is provided that the shipper 'will be responsible to the carrier and the other shippers for all damages caused', without prejudice to the right of the carrier to unload, destroy, transform, or render the cargo harmless. In these cases we are faced with liability of a contractual nature, which arises when the aforementioned requirements have not been met, and which only gives rise to internationally recognised measures in these cases, since the goods will be unloaded, destroyed or made harmless 'without the right to compensation' (art 232 LNM), so that in these cases the carrier's liability for damage or loss is excluded (arts 223 and 277 LNM). Otherwise, art 223 LNM establishes that the carrier will be liable for damages and losses to the goods caused while in its custody, a logical consequence of the duty of custody imposed on the carrier in the execution of the transport contract. No liability can be deduced on the part of Contank, which at all times complied with the rules applicable to this case.

One should not lose sight of MSC's duty either, which is deduced from art 257.2 LNM ('reservations by verification'): 'If the carrier has verified that the apparent state of the goods received does not correspond to that described by the shipper, he must include in the bill a reservation in which he will state the actual condition of those goods. In the absence of such a reservation, it will be presumed that the carrier has received the goods in good condition.' The carrier even has the option - which MSC did not exercise - of making reservations without verification (art 258 LNM) in the case of not having the adequate means to verify the accuracy of the shipper's declarations about the nature of the goods, etc. None of this can be deduced from the consignment note issued by MSC in favour of Contank, so the latter cannot be held liable.

Finally, there is no contractual link between Ashland and MSC. Ashland's contractual relations were limited to the agreements it signed with Contank, the company which owned the containers.