Expropalm SA (the plaintiff) claimed for damage resulting from the delay in the delivery of cargo carried in a container from Guayaquil, Ecuador, to New Berlin, United States, in a multimodal transport arrangement. The cargo remained for over a month in the custom facilities at the destination. The defendant alleged that the plaintiff's action was time-barred. The first instance Court dismissed the claim. On appeal, the Court of Appeal (CA) reversed the decision. The CA applied the law on consumer protection and declared that the clauses in the bill of lading did not bind the parties because this law prohibits stipulations written in another language than Spanish. The CA stated that according to Decision 311 of the Andean Community, applicable in Ecuador, the international Conventions on multimodal transport prevail over the Decisions of the Andean Community. Consequently, the CA applied the Hague-Visby Rules, ratified by Ecuador in 1977. The CA read art 3.6 bis as if any action for damage (not only against third parties) could be filed after the one-year period if it is brought within the time allowed by the law of the court deciding the case. The Code of Commerce (CCom) establishes a five-year time bar for actions arising from maritime commerce that are not subject to a specific time limitation. Hence, the CA declared that the claim was not time-barred. The defendant recurred the decision on cassation before the National Court of Justice/Corte Nacional de Justicia (NCJ).

The defendant argued that the consumer protection law did not apply to the claim because the law defines a 'consumer' as any natural or legal person who is the final user of the service. The plaintiff never invoked such a condition but stated in the lawsuit and proved in the trial that it was undertaking exportation activities. Therefore, the application of the consumer protection law violated the principle of freedom of contract stated in the Constitution by discarding the terms and conditions of the contract of carriage stated in the bill of lading, including those regarding the time bar, the applicable law, parties' duties and limitation of liability. Against the conclusion of the CA regarding the time bar limitation, the defendant alleged three arguments. First, as the carriage was multimodal, it cannot be governed by the rules referring exclusively to maritime transport, but by the rule of the CCom on carrier’s liability for damage to cargo that establishes a one-year time limitation for carriage to foreign countries. Second, Decisions 331 and 393 of the Andean Community on Multimodal Transport have higher relevance than the CCom and they establish a nine-month time bar. Third, the Hague-Visby Rules did not apply they do not govern multimodal transport. And, if they were applicable, the CA did not consider the amendment made by the Ministry of Foreign Affairs of Ecuador in 1996. This amendment clarified that in the translation into Spanish, the words 'against third parties' were missing in the first sentence of art 3.6 bis. Even so, the CA treated the defendant as a third party, ignoring that it was the carrier performing multimodal transport.

Held: The NCJ reversed the decision. The NCJ held that the law on consumer protection did not apply to this claim because art 1 states that the natural or legal persons that use the services as part of its commercial activities for its clients or third parties shall not be considered a consumer. The evidence of the case proved that the plaintiff was undertaking commercial activities. The NCJ also agreed that the evidence showed that the service provided by the defendant included not only the maritime sections from Guayaquil to Baltimore but also the custom procedure and inland carriage to warehouses in Milwaukee. As the carriage involved more than one means of transport, it was multimodal transport as defined by Decision 331 of the Andean Community. The NCJ also stated that the CA erred in applying the time bar rule introduced in art 3.6 bis by the 1968 Visby Protocol and not the rule provided in art 3.6 of the Rules. It was proved in the process that the plaintiff had a direct contractual relation with the defendant who acted as carrier. Therefore, it was incorrect to attribute the character of third party to the defendant, as was the application of art 3.6 bis and the subsequent application of the five-year general rule for time limitation of the CCom. In any case, the CCom also establishes in art 248.4 a one-year time bar for actions for damage resulting from contracts of multimodal transport.