This was an appeal filed by Merna Shipping SL (Merna) against the judgment of Section 9 of the Provincial Court of Valencia in SAP V 3513/2020.

On 30 March 2017, the ship Tuna 1, owned by Akdeniz Ro-Ro Deniz Tasima (Akdeniz), arrived at the port of Sagunto (Spain) from the port of Zarzis (Tunisia), carrying, among other things, a Grove RT540 crane owned by Merna. The crane was self-propelled with wheels, and was loaded on the deck of the ship in the stern area and on an inclined plane. The ship had a lift platform (elevator) to move cargo between the hold and the deck. The ship's crew unlatched the crane, but it was not unloaded immediately. Some 15-20 minutes after that operation, the machine rolled until it fell into the hole of the lift platform, where it became stuck. The unloading of the cargo had been contracted to the port handler, Logística Puerto de Sagunto SL (Logística), whose insurer was Generali España SA de Seguros y Reaseguros (Generali).

Merna filed claims against Akdeniz and Generali for EUR 123,306.13. The first instance judgment acquitted Akdeniz and upheld Merna's claim against Generali. However, it applied the package limitation of liability provided for in the Hague-Visby Rules and art 334.1 of the Maritime Navigation Law (LNM). Therefore, it ordered Generali to pay 38,000 SDRs, with an insurance policy deduction of EUR 3,000. All the parties appealed. The Provincial Court upheld the appeals of Generali and Akdeniz. The Court found that the cause of the accident was that the brake system of the crane had been tampered with, which constituted a defect inherent to the transported goods, equivalent to a fortuitous event, because neither the port handler nor the carrier could know of, and therefore avoid, this circumstance. Merna appealed to the Supreme Court.

Held: Appeal dismissed.

The first ground of the cassation appeal denounces a violation of art 4.2.m of the Hague-Visby Rules in relation to the judgments of this Court of 7 October 1927 and 617/1989 of 21 July.

The appellant alleges that the lack of brakes on the crane cannot be considered as an inherent vice, since by itself it could not have caused the accident, and there were other circumstances that contributed severally and decisively to the occurrence of the accident. Inherent vice, for the purposes of carriage of goods, is a defect that the cargo suffers from that, by itself, can damage it. In this case, the cargo was not damaged due to its own defect, since even though the brakes were inoperative, there were other causes: the crane was placed on an inclined plane, it was handled by a stevedore, and it was not properly stowed with lashings or chocks.

The responsibility of the maritime carrier in this matter is subject to the provisions of the Hague Rules, which were ratified by Spain in 1930, and by its two subsequent Protocols in 1968 and 1979. This Convention and its modifications are part of the Spanish legal system, and have been published in the BOE of 11 February 1984.

As stated in judgment 242/1980 of 21 June, one of the essential purposes of this Convention is to regulate exoneration clauses in bills of lading through mandatory legal regulations (art 3.8). In their current formulation, the Hague-Visby Rules regulate the liability of the maritime carrier for loss of, or damage to goods on the basis of fault liability, which revolves around the obligations that the carrier assumes in the carriage contract, and a list of causes of exoneration that must be invoked and proven, placing the burden of proof on the carrier, who has to prove any causes of exoneration (art 4.2). According to this article, the carrier will not be responsible for loss or damage resulting (among other causes) from an act or omission of the shipper (art 4.2.i), or a hidden defect in the goods (art 4.2.m).

Moreover, art 3.4 of the Convention establishes that the bill of lading establishes a presumption, unless proven otherwise, of the receipt by the carrier of the goods in the manner in which they are described in accordance with arts 3.3.a, 3.3.b and 3.3.c, in particular regarding the apparent state and condition of the goods.

Within the causes of exoneration of responsibility of the carrier contained in art 4.2, a distinction is usually made between nautical faults (defects in the handling of the ship) and commercial faults (the remaining causes unrelated to the handling of the ship, basically referring to the condition, care, and handling of the cargo), which has been echoed by this Court's jurisprudence, for example, in judgment 507/1996 of 18 June.

Among the commercial faults, this appeal concerns inherent vice of the goods (art 4.2 m). This should be understood as a defect inherent to the cargo that either already existed when it was received by the carrier, or was generated during the trip, but was due to causes inherent to that cargo. By way of example, inherent vice can be considered as a cause of exoneration of responsibility when the cargo that was delivered to the carrier was already broken or damaged, or was affected by decomposition or rottenness (if it is an organic product), or in the case of materials, when they already had a manufacturing defect.

Inherent vice should not be confused with the nature of the cargo (a concept used by the Hague-Visby Rules in other provisions). Inherent vice is an atypical defect of a certain cargo, which is not inherent to the class, species, or category to which it belongs. The defect is not present in the generality of the goods of that class, but only in the specific goods transported. On the contrary, the nature of certain goods refers to the typical qualities of that class of products, in such a way that it is not a defect of the cargo but a quality of its own: glass is fragile; metals rust; plants can dry out, etc.

If the damage or impairment arises from the vice of the thing transported, this is a reason for exculpation that, according to the jurisprudence prior to the LNM, could be included in the broad concept of a fortuitous event, since it also fell outside the fault of the carrier. However, the better view is that the inherent vice of the cargo referred to in art 4.2.m of the Hague-Visby Rules is not exactly comparable to a fortuitous event, since the following provisions would have a better place within that concept:

(c) perils, dangers and accidents of the sea or other navigable waters;
(d) act of God;
(e) act of war;
(f) act of public enemies;
(g) arrest or restraint of princes, rulers or people, or seizure under legal process; ...

but it is still evident that art 4.2.m supposes an ex lege exoneration of responsibility of the carrier.

Even if we consider that the disconnection of the braking system of the crane was not exactly inherent vice, in the sense indicated above, it would in any case be, in accordance with the factual basis of the appealed judgment, a negligent act by the shipper, for which reason it would operate as a cause of exclusion of liability under art 4.2.i of the Rules. The basis for this exclusion is that the carrier must not be held liable for damage caused by causes beyond its control, in the sense that the breach is not due to the carrier's conduct, but the shipper's. And there is a consensus in the doctrine that it is not necessary that it is a culpable act, but it is enough that it arises from any act or omission of the shipper or owner of the goods, its agent, or representative. This, in any case, would exclude the liability of the maritime carrier. As a consequence, the first ground of appeal must be dismissed.

The second ground of appeal is that the accident did not occur by a fortuitous event, but that, with the diligent conduct of the port handler, it could have been avoided.

In this case, according to the evidence, the cause of the damage to the crane was not unknown, nor was it attributable to the fraudulent or negligent action of the port handler. On the contrary, it was due to the acts or omissions of the personnel of the loading company itself, who deactivated the braking system of the crane, thereby turning it into an object capable of moving uncontrollably.