Mapfre Seguros de Empresa SA (the plaintiff) claimed damage to a cargo of fresh plums carried from Badajoz, Spain, to Farroupilha, Brazil, by multimodal carriage, against Tránsitos de Extremadura SL (the defendant), the freight forwarder. The defendant had subcontracted Lafoes for the carriage by road from the shipper's warehouse to the port of Lisbon, Portugal, and Hamburg Süd for the sea leg to a port in Brazil. At the destination, the cargo reported damage caused by high temperatures inside the container.

Based on art 22 of the Law of Carriage of Goods by Sea under Bills of Lading of 22 December 1949 (LCGS) and art 3.6 of the Hague-Visby Rules, the defendant alleged the plaintiff's claim had lapsed. The carrier delivered the container on 4 October 2013, but the plaintiff only filed the lawsuit on 3 July 2015. However, the first instance Court rejected this defence, stating that the one-year period was interrupted by the claim letters sent to the defendant on 30 June 2014 and 24 June 2015. Hence, the Court admitted the claim and ordered the defendant to pay compensation. On appeal, the Court of Appeal (CA) affirmed the decision, stating that the shipper in a multimodal carriage is entitled to sue the freight forwarder directly. The CA also agreed that the time bar was interrupted by the claim letters. The defendant recurred the decision in cassation before the Supreme Court/Tribunal Supremo (SC). The defendant alleged that it took on the carrier's status as a freight forwarder and was thus entitled to the time limitation period established in the contract. This limitation was not a time-bar period (prescripción) but a lapsing period (caducidad) that does not admit interruption. The plaintiff opposed the recourse, alleging that the defendant's argument was based on the assumption that the damage occurred during the sea leg, while the lower Courts did not declare that.

Held: The SC dismissed the recourse. The SC confirmed that the defendant executed all the necessary complementary paper work, including administrative, taxes, customs and logistics matters, and contracted in its own name for international carriage by land and by sea under a bill of lading. Hence, the freight forwarder took on the status of the carrier in relation to the shipper and assumed all the carrier's obligations and liabilities.

There is no specific law, international treaty, regulation or directive of the European Union at the moment of these events that regulates the time limitation to file an action against an operator of international multimodal transport. The United Nations Convention on Multimodal Transport 1980 has not gathered the necessary ratifications to enter into force. The LCGS, which incorporated the Hague Rules, later modified by the 1968 and 1979 Protocols, does not contain provisions on multimodal transport. The Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR), as modified by its 1978 Protocol, both ratified by Spain, also does not provide rules for multimodal transport. Article 2 of the CMR refers to a carriage where the vehicle itself containing the cargo is partially carried by sea, railway, inland waterways or by air. It does not govern the carriage of a container loaded in different vehicles in each of the transport segments. Article 67 ff of law 15/2009 on Carriage of Goods by Land, in force at the time of these events, governs multimodal transport when one of the transport segments is performed by land. Art 68.3 establishes that where it is impossible to determine the segment where the damage occurred, the carrier's liability shall be assessed according to this law. However, this law also orders in art 2.2 that the carriage of goods by land shall be governed by the international treaties ratified by Spain following their respective scope of application, the rules of the European Union and the provisions of this law itself. Article 1.1 of the CMR establishes its scope of application to any contract for the carriage of goods by road made for a consideration by vehicles, provided that the place where the goods are loaded and the place of delivery, indicated in the contract, are located in two different countries, where at least one of which is a Contracting State, regardless of the domicile and nationality of the parties to the contract. The carriage by road constitutes one of the carriage segments under analysis, so the CMR applies to this claim, excluding the provisions of Law 15/2009.

The case law has established that freight forwarders contracting in their own names acquire the character of carriers. When the carriage is performed under different modalities, and in the absence of a mandatory uniform regime, their liability shall be assessed according to the rules that govern the carrier's liability of the segment where the damage occurred. Therefore, the liability regime applicable to the defendant is the same that applies to the actual carrier that caused the damage. The case law has also established the so-called 'network system', by which the liability for damage is determined by the rules governing the segment where the damage occurred. This is the system adopted, which some nuances, by a good number of international Conventions: among them, art 31 of the Warsaw Convention 1928; art 38 of the Montreal Convention 1999; art 48 of the COTIF/CIM; art 2 of the CMR; as well as in 69.1 of Law 15/2009 and art 209 of Law 14/2014 on Maritime Navigation.

The Hague-Visby Rules apply to the sea leg, while the CMR applies to the land segment. Both instruments provide for different liability regimes, particularly a different time limitation to exercise the action against the carrier. One of the problems of the 'network system' arises when it is unknown where the event that produced the damage occurred, as in this case. The defendant does not justify why the regime governing the maritime segment must apply. It was not proved that the damage occurred during the sea leg section, and this recourse is not questioning the assessment given to this aspect by the CA. Nor is there evidence that the parties agreed on the application of the specific regime invoked in the recourse.

In the absence of a domestic legal or Convention rule governing this contract, and specifically the time-bar period, the SC considered that it should apply the regime that is less burdensome to the shipper. Several reasons support this approach. One of them is the restrictive criteria to be implemented in the application of the time-bar period and, by extension, to the time-lapse period. These institutions have not been based on principles of strict justice but on legal certainty and the assumption that the claimant has waived the action. Another reason is that the carrier, including the contractual carrier, is in a better position than the shipper to determine in which segment of the carriage the event that caused the damage occurred. Hence, the lack of knowledge of the moment of damage cannot operate to the detriment of the shipper. Observing this criterion, the SC applied the CMR, which in art 32 establishes a one-year time bar that allows the period's suspension. This regulation is more favourable to the shipper than the regime established in the LCGS and the Hague-Visby Rule, as a time-lapse period that cannot be interrupted.