Compañía de Seguros Ecuatoriano Suiza SA (the plaintiff), an insurance company acting under an assignment of rights, claimed for damage to a cargo against the carrier Hamburg Sud Ecuador SA. The first instance Court admitted the claim and ordered the defendant to pay compensation. The carrier appealed, and the Court of Appeal (CA) reversed the decision, declaring that the action was time-barred. The plaintiff recurred the decision on cassation before the National Court of Justice/Corte Nacional de Justicia (NCJ). The main argument of the recourse was the wrong interpretation of the article of the law governing the contract of insurance that establishes a two-year bar limitation for the insurer to bring action against the third party responsible for the damage. It alleged that the expression 'from the moment of the act that originates it' to start counting that period must be understood as the moment when the claim was paid. As the date the process was served was within the two years calculated from the date the insurer paid the claim, the action was filed on time.

Held: The NCJ affirmed the decision. The NCJ stated that the two-year time bar established in the law of insurance was for actions resulting from the insurance contract and applies only to claims against the insurer, the insured, or the beneficiary, and not against third parties responsible for the damage. Hence, it was necessary to observe the provisions governing time limitation established in the Code of Commerce (CCom). The law of insurance states that, once the insurer has paid the claim, it subrogates the rights of the insurer against the third party responsible for the damage, up to the amount paid. However, the third party can also allege the same defences it has against the insured. Hence, the insurer’s claim is subject to the time bar rules of the contract of carriage of goods by sea. Ecuador has ratified the Hague-Visby Rules. According to the Constitution, this Convention has prevalence over national laws. Articles 3.6 establish a one-year period to bring suit against the carrier counted from the moment of the delivery of the goods or the date in which the cargo should have been delivered. Regarding third-party liability, art 3.6 bis states that this period may be extended according to the law of the Court. That requires the Court to analyse the limitation periods that the local law establishes for this kind of action. The rules contained in the second book of the CCom govern the contract of maritime transport in general. However, the CCom rules are not applicable for two reasons. First, based on art 18 of the Civil Code, this particular contract is specifically governed by the Hague-Visby Rules. Second, as the Rules were ratified after the CCom, dated 1906, they have hierarchical supremacy over the CCom. Therefore, the applicable time limitation for this claim was one year as established in art 3.6 of the Hague-Visby Rules, and the claim was time-barred.