Paccar Financial España SL (Paccar) was the owner of a DAF tractorhead vehicle. The vehicle was leased to SMET SA (SMET) and insured by the appellant, Generali España SA de Seguros y Reaseguros. The insurance policy named SMET as the insured and Paccar as the beneficiary. SMET contracted with the first respondent, Compañia Trasmediterránea SA (CT), for the carriage by sea of the vehicle from the Port of Palma de Mallorca to the Port of Valencia under a bill of lading on the Sorrento, owned by the second respondent, Grimaldi Euromed SpA (Grimaldi), and chartered by CT. During the voyage, the ship suffered a fire that affected the vehicle. The appellant paid Paccar EUR 54,131.87 and sued the respondents in a subrogated action. The Court of first instance applied the Hague-Visby Rules and held that the respondents were not liable.

The appellant appealed to the Provincial Court, arguing that the Hague-Visby Rules were not applicable to its claim. The appellant maintained that it was exercising an extra-contractual liability action by subrogating itself to the rights that corresponded to the beneficiary of the insurance contract (Paccar), which were outside the maritime transport contract.

Held: Appeal dismissed.

The appellant confuses the insured and the beneficiary of the insurance policy. The insured is a personal party to the insurance contract as the owner of the insurable interest with the right to collect compensation when taking the risk. Contrary to what the appellant maintains, the owner of the interest is the insured, so that, once the loss occurred, the right to compensation corresponds to the insured, notwithstanding the fact that the insured may have assigned the benefit of the policy to a third-party beneficiary.

It is not in dispute that the loss of the vehicle was due to the fire that occurred on the deck where it was transported. Nor is it controversial that the transport of the vehicle was contracted under a bill of lading. This is relevant when determining the regulations applicable to the appellant's claim. Once the ruling of the first instance Court is confirmed in order to exclude the subrogation of the insurer in the rights of the beneficiary, the actions that assist the insurer in subrogation are those arising from the relationship that the insured had with those who are attributed responsibility for the incident. That relationship is represented by the transport contract under the bill of lading regime. Once this is determined, the particular regulations become applicable, whether contractual or non-contractual liability is alleged (see art 4 bis of the Hague-Visby Rules and art 282.3 of the Law on Maritime Navigation (the LNM)).

Article 277.2 of the LNM subjects the carrier's liability regime in contracts for the maritime transport of goods under bills of lading, whether national or international, to the LNM itself, to the Hague Rules, and to the Protocols that modify it, to which Spain is a State party. Those Protocols are the Brussels Protocol of 23 February 1968 (the Hague-Visby Rules) and the London Protocol of 21 December 1979 (the SDR Protocol). The Explanatory Memorandum of the LNM refers to these Rules, stating:

In title IV, the regulation of the carrier's liability for damage and loss of goods transported maintains the current regime, contained in the Hague Rules-Visby, ratified by Spain and by the generality of maritime countries. According to the OECD, these Rules currently regulate 95% of world maritime trade. The carrier's liability regimes have been unified, applicable to maritime transport under the bill of lading regime - national or international - and to chartering in its different modalities. This system has the character of a mandatory law (non-derogable for the parties, for the benefit of the owner of the rights over the goods) in transport contracted under the bill of lading system, as it is a sector where the negotiating capacity of the users of the service is more limited.

The specific regulations aim to regulate the liability of the carrier in maritime transport, pursuing uniform legislation to deal with the main conflicts that arise; among them, the liability of the carrier, as a measure of protection for shippers against the exemption clauses which used to be inserted into bills of lading.

Part of the regulations of the carrier's liability for loss or damage of goods based on fault specifies a series of causes of exemption from liability which are quantitatively limited. The main obligation of the carrier is to exercise due diligence in making the ship seaworthy, and in making the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. If damage results from a lack of these conditions, the carrier bears the burden of proving that it acted with reasonable diligence (art 4.1 of the Hague-Visby Rules). From the regulation of this responsibility, it follows that the carrier is not liable for damages arising from lack of seaworthiness of the ship, provided that it acts with reasonable diligence. Nor is it liable for the concurrence of any of the causes of exoneration of responsibility that are listed in art 4.2, among which is fire, unless it is caused by the actual fault or privity of the carrier (art 4.2.b).

The appellant invokes the responsibility of the respondents due to the fire on the basis of: first, the faulty state of the electrical installation of the ship; and, secondly, the lack of diligence of the crew in the task of extinguishing the fire. The first instance judgment excluded both the second cause of liability, on the basis that this was a nautical fault for which the carrier is not responsible; and the first cause, because there was no evidence that this was due to the fault of the carrier.

This Court confirms those findings. The jurisprudential doctrine on liability in the maritime transport of goods has been concerned with distinguishing between nautical faults, which are those related to navigational functions or care of the ship, and commercial faults, related to the handling and care of the cargo. As for the former, it is a general principle that the carrier, provided the ship is in a seaworthy condition, is not liable for them. If it is found that the ship is unseaworthy, the burden is on the carrier to prove that it acted with reasonable diligence. The extinguishing tasks carried out by the ship's crew once the fire has been declared would affect the navigation and care of the ship, being intended to safeguard it. Therefore, they would be integrated into the concept of nautical faults for which the carrier is not responsible. This is the result of art 4.2.a of the Hague-Visby Rules, which excludes the carrier's liability for loss or damage arising or resulting from the act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship. In any event, the evidence does not establish that the fire was not acted upon with the required haste. The expert report establishes that the actions carried out by the crew were in accordance with the established emergency plan and were adequate. There is no evidence in the proceedings that would allow the expert report to be distorted in order to reach the appellant's conclusion.

As far as the cause of the fire is concerned, it is agreed with the Court below that it is not established that it came from the poor state of the ship's facilities. The ship has all the administratively required certificates. The ship had been subject to surveys and inspections under EU Directive 1999/35/EC, of 29 April, without issues being detected. The plaintiff contends that the evidence proves that the fire was due to the faulty state of the ship's electrical installation. But this is not the effect of the evidence, without it being possible to ignore the fact that, given the state in which the ship was found, it is not possible to determine the exact cause of the fire.

[For related proceedings, see Transteco SA v Compañía Trasmediterránea SA SAP M 14022/2021 (CMI1729).]