Don Arturo (the plaintiff) claimed against the carrier, Ibarra SA (the defendant), for damage to a cargo of pieces of cowhide carried in 37 pallets from Buenos Aires, Argentina, to Valencia, Spain, on the MV Belarcázar. The ship departed on 5 January 1980 carrying the cargo under deck, and arrived in Valencia on 2 February. The agent of the vessel, Bergé y Cía, informed the arrival to the customs agent, Serla SL (Serla), which started the discharge operation the same day and noted that the pallets were placed on deck. The cargo survey reported damage from overheating and putrefaction. Serla submitted a protest on 6 February and appointed Comisariado Español Marítimo to assess the nature and causes of the damage. The surveyor inspected the cargo on 8 and 11 February 1980 and concluded that exposure of the cargo to the sun and high temperatures caused the damage.

The defendant appeared in the process and rejected liability, arguing a contradiction in the damage report, which stated that the inspection took place on 8 and 11 February but it was dated 12 March 1980. The first instance Court admitted the claim partially and ordered the defendant to pay compensation. On appeal, the decision was reversed. The Court of Appeal applied art 952.2 of the Code of Commerce (CCom) which states that the lack of submission of a protest at the moment the cargo is received, or within 24 hours when the damage is not apparent, prevents an action for damages. The plaintiff recurred this decision on cassation before the Tribunal Supremo/Supreme Court (SC) alleging an infraction to art 22 of the Law of Carriage of Goods by Sea under Bills of Lading of 22 December 1949 (LCGS). This law incorporated the Hague Rules into the Spanish legal regime.

Held: The SC reversed the decision. The SC stated that the LCGS governed this contract because it met the two requirements set out in arts 1 and 2. The first requirement is that it was a carriage of goods by sea under a bill of lading or similar document (art 1.b of the Hague Rules). The second requirement was that it had an international scope. This character precluded the application of the CCom. Under the LCGS, the absence of a protest submitted within the time established in art 22 only affects, and not decisively, the burden of proof to determine the damage. The evidence demonstrated that the damage resulted from the defective stowage and the placement of the cargo on deck. That exposed the cowhide to the effects of the sun during the voyage. The meaning of the period of 3 days stated in art 22 of the LCGS to give notice of non-apparent damage (art 3.6 of the Hague Rules), is reduced to an expression of disconformity of the person receiving the goods with the carrier’s performance of the obligation of carrying and delivering the cargo in the same condition as received. If no notification is given within the established period, it creates a presumption iuris tantum that the obligation was performed satisfactorily. Although this presumption is rebuttable by proper evidence, it has particular relevance in the international carriage of goods where it is not always easy to define the real cause of the damage (and that is not the case in this claim). Furthermore, in this case, the plaintiff notified the damage in a reasonable time as Serla sent a letter to the ship’s agent on 6 February and appointed a surveyor the day after.